Paragraph 5 is the “EVEN IF” argument about the “de facto officer doctrine” - saying that “a facially proper order must be obeyed”. According to the specific Article 92 charge against Lakin, the issue is NOT whether he had to obey the order he was given, but whether he was given a LAWFUL order and disobeyed it.
They have not charged him with disobeying the “de facto officer doctrine”. They have charged him with disobeying a LAWFUL ORDER. They have to allow him to defend himself against that charge - EVEN IF he would be guilty of something else if not the actual charges against him.
Paragraph 6 is the “political question” - saying that “In my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the President’s credentials on trial.”
That’s saying that nobody but Congress has standing, which is patently absurd. To use the “political question” he has to show that the Constitution expressly gives that job to Congress. Nowhere does it say that.
And even if it did, is his job to be the judge, or to be the investigator? What difference does his “view” regarding our constitutional jurisprudence make? Who died and made him judge?
If he wants to say that only Congress can determine whether it was a lawful order, then why is the military making the accusation? Shouldn’t Congress be making the accusation, since they are the only ones who (supposedly) can even DECIDE whether the order was lawful? If he wants to say that the lawfulness of the CIC’s orders is outside the jurisdiction of the military, then he is admitting that this whole CASE is outside the jurisdiction of the military so they shouldn’t even be hearing it. Congress should be suing Lakin, if that legal reasoning was actually followed.
And he is entitled to anything he might need to prove the orders given him by Colonel Robert, Colonel McHugh, and Lieutenant Colonel Judd were invalid. As Lieutenant Colonel Driscoll correctly pointed out, the defense offered no legal support whatsoever for their contention that all military orders issued by superiors to their juniors are invalidated during times when a president improperly holds office. And their contention not only violates court precedent, as in the U.S. v New decision, but the law of lawfulness of orders doctrine.
That’s saying that nobody but Congress has standing, which is patently absurd. To use the “political question” he has to show that the Constitution expressly gives that job to Congress. Nowhere does it say that.
And where is he wrong? He gave the defense the opportunity to produce reasons why the question of Obama's eligibility was a matter should be adjudicated by the military court martial, irrelevant to the case as it may be, and the defense failed to do so. So here's your chance. What clause of the Constitution empowers the military to rule on Obama's eligibility?
And even if it did, is his job to be the judge, or to be the investigator? What difference does his “view” regarding our constitutional jurisprudence make? Who died and made him judge?
In the military justice system, the Investigating Officer determines whether charges are warranted. In preparation for the Article 32 hearing he reviews evidence and has the authority to decide what evidence is relevant for his review and what is not. In this case Lieutenant Colonel Driscoll determined that matters relating to Obama's eligibility were not relevant.
If he wants to say that only Congress can determine whether it was a lawful order...
What he said was that only Congress can put the presidents credentials for the presidency on trial. The military does not have the authority to do so. He never said that only Congress can determine what is a lawful order or not. That's the responsibility of the military.