If a criminal defendant is being tried for conduct that was made criminal by a statute that was passed by Congress in 1931 and signed into law by President Herbert Hoover, can he force the prosecution to prove that Hoover had each of the constitutional qualifications (e.g., natural born citizen, age, residency, etc.)? If the trial judge rules that the prosecutor doesn’t have to prove these facts and the jury convicts the defendant, is the conviction valid even though we don’t know whether the statute was signed into law by a legitimate president?
I am not arguing against the de facto officer doctrine.
What I am saying is that the DOD is accusing Lakin of disobeying a LAWFUL order. Whether he has to obey it even if it’s unlawful is irrelevant. The charge before Lakin right now is that he disobeyed a lawful order. He didn’t. He disobeyed unlawful orders(according to the elements of Article 92 because they were contrary to the Constitution) that the de facto officer doctrine would require him to follow anyway.
Judge Lind basically said that if somebody is required to follow the orders then they are lawful orders. She said that on a whim, not on the basis of any cited precedent or on the basis of the definitions provided in the actual relevant law (ARticle 92). Article 92 says NOTHING about whether the person has to obey the orders - only about lawful orders.
The other charge (shoot, can’t remember which one - missing movement?) basically charges the person with disobeying an order they are required to obey. On that one the DOD may have a point, because of the de facto officer doctrine. But by charging him with an Article 92 violation, the DOD made the issue the LAWFULNESS of the orders, and not simply whether the orders have to be obeyed anyway.
Judge Lind should know the difference. I’m not sure whether she is just obeying orders from the higher-ups or if she’s playing stupid on this, but the fact is that she cited no legal rationale for her “inference” that an order is lawful if it has to be obeyed - especially since the elements of Article 92 come straight out and say what constitutes a lawful order and includes nothing to do with whether it has to be obeyed.