From the Military.com article published 4/9:
Phil Cave, a retired Navy judge advocate general who now practices military law as a civilian, said that even if Lakin does decide to deploy as scheduled, the Army still may be able to prosecute him. Under Article 88, Cave said, a servicemember can be charged for making disrespectful comments or remarks about the president.
Cave believes that Lakin’s supporters in the birther movement hope that a court-martial will give defense attorneys the authority to seek, through discovery, other documents to help make their case.
“They think that by using [servicemembers in a court-martial] they can get discovery like you could in any criminal prosecution,” he said. “That ain’t gonna happen. They’re not going to have discovery where they’re going to get the president to produce a birth certificate because, I’m reasonably certain, no military judge, no appellate court and no federal court, and no U.S. Supreme Court is going to say they have a right to get that as a matter of discovery.”
Phil Cave, a retired Navy judge advocate general who now practices military law as a civilian, said that even if Lakin does decide to deploy as scheduled, the Army still may be able to prosecute him. Under Article 88, Cave said, a servicemember can be charged for making disrespectful comments or remarks about the president.
Cave believes that Lakin’s supporters in the birther movement hope that a court-martial will give defense attorneys the authority to seek, through discovery, other documents to help make their case.
“They think that by using [servicemembers in a court-martial] they can get discovery like you could in any criminal prosecution,” he said. “That ain’t gonna happen. They’re not going to have discovery where they’re going to get the president to produce a birth certificate because, I’m reasonably certain, no military judge, no appellate court and no federal court, and no U.S. Supreme Court is going to say they have a right to get that as a matter of discovery.”
Unless this former JAG officer (I doubt he was a military judge or magistrate...or he would have been identitfied as such) has handled a case dealing with the Birth Certificate of a sitting President....or can cite such a case that set the precedent he claims....this former JAG officer is blowing smoke.....he has no idea how a military judge will rule on allowing the Birth Certificate in as evidence....or allow the defense to obtain it
Since the defense will be based on Obama not being able to legally hold the office of President based on his birth status or other issues.....the military judge will have to rule in favor of the defense...or it will get overturned on appeal. The Birth Cert is an essential part of the defense’s case.