Food for Thought

[mike86002000]

Back in January, snowbound, I was moved to rejoin this group, by entries in the thread, "The Flimsy Case Against Mary Surratt". The military trial of the conspirators had been referred to as "illegal", and Mr. Binzel objected.

RE: The Flimsy Case Against Mary Surratt
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).
(End Quote)
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 Parte 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

wpbinzel Wrote:
Hello, Another Mike. Welcome to the forum.
I know a little bit about the law and Ex Parte Milligan. See the March 2018 issue of the Columbia Law Review.
Mr. Binzel,
I'm in the process of reading the article you mentioned. Thanks for bringing it up. It is in Vol. 118, Issue 2, titled: "The Law (?) Of The Lincoln Assassination", by Martin Lederman. I'm becoming a fan of his. I see you and Laurie Verge are mentioned in the acknowledgements. You should be proud.
I had problems accessing the article using the URL Laurie provided, probably because of my browser, and found it on "myjstor" @:
https://www.jstor.org/stable/26371823?se...b_contents . Other folks may find it useful to do the same. Free membership requires only a user name and password. You can come and go on the article as you please. It's about 168 pages long but there is an abstract and an excellent table of contents that would let one "cherry pick".
The article supports Ex Parte Milligan in the strongest terms, and considers military trials of civilians an aberration. The author is concerned about the recent invocation of these few trials as precedent, supporting the legitimacy of more of them, the opinions of Brett Kavanaugh and Donald Trump not with standing.
Mike

The above are posts from back in January. I strongly recommend the Columbia Law Review article. The link to it still works.
Mr. Prindel has referred to the "trial" as "illegal". Bravo! Was there as much objection in April as in January? Are the times a-changin'? As I wrote in January, the supreme court had agreed to hear the appeal of the district court ruling regarding Ex Parte Mudd et all. Pardons "headed off" hearing the case, much less a decision. Since the members of the court were the same people who ruled on "Ex Parte Milligan", I think results would probably have been similar. That is: Trials of civilians by military tribunals are illegal. Mike