The Flimsy Case Against Mary Surratt

[wpbinzel]

(01-20-2019 11:47 AM)mike86002000 Wrote:  Bill Binzel wrote:
No court of competent jurisdiction has ever ruled that the trial of the Lincoln assassination conspirators was "illegal," even in the aftermath of Milligan. Judge Thomas Jefferson Boynton of the U.S. District Court for the Southern District of Florida considered that very issue in Ex Parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868) two years after Milligan. Judge Boynton specifically ruled that Milligan was not on point and was not applicable to the Lincoln assassination conspirators. That decision has never been overruled. In fact, a portion of the decision was cited as good law by the U.S. Court of Appeals for the D.C. Circuit in 2016 in a ruling authored by now-Justice Brett Kavanaugh. See Al Bahlul v. United States, 840 F.3d 757 (2016).

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The Supreme Court, in "Milligan", states its central question is the legality of military trials of civilians when civilian courts are available. "Had the military commission jurisdiction, legally, to try and sentence him?" Their finding certainly doesn't apply just to Mr. Milligan, any more than "Brown VS. The Board of Education" applies just to Ms. Brown.
The full title of the case Judge Boynton ruled on was "Ex Patre Samuel A. Mudd, Samuel Arnold, and Edward Spangler", all of the "conspirators" who survived. The decision was appealed to the Supreme Court. Just as the petition was being filed, President Johnson pardoned the doctor. The court had actually begun hearing oral arguments in the cases of the other two "conspirators", when they too were pardoned. This rendered the case moot and the court dropped it. Please see page 454 of the Columbia Law Review article.
If it is true that District Court Judge Boynton's decision has not been overruled, it's also true that the Supreme Court decision "Milligan" hasn't been either. Thankfully, it still stands.
Mike

“The decisions of the Supreme Court are binding on the inferior courts; and no decision was ever more willingly followed than would be the decision and the ruling of the majority of the Supreme Court in Milligen’s [sic] case by this Court in any case where that decision was on point. … But I do not think that ex parte Milligen [sic] is a case in point here [i.e., the facts of Ex parte Milligan, are not applicable to the Lincoln assassination conspirators because they were not “civilians”]. … The President was assassinated not from private animosity, nor any other reason than a desire to impair the effectiveness of military operations…. It was not Mr. Lincoln who was assassinated, but the Commander-in-Chief of the army for military reasons [i.e., the Lincoln assassination conspirators were, in modern terminology “enemy combatants”]. I find no difficulty therefore, in classing the offence as a military one, and with this opinion arrive at the necessary conclusion that the proper tribunal for the trial of those engaged in it was a military one.”
-- Ex parte Mudd, 17 F. Cas. 954 (S.D. Fla. 1868)

PS - I am familiar with what Marty Lederman wrote on page 454, but it does not change the fact that Mudd still stands as the final ruling on the Constitutionality of the use of a military commission to try the Lincoln assassination conspirators. One may be of the opinion that Judge Boynton's ruling is incorrect, but that is all it is -- an opinion, and is not a matter of fact or law.