ONE
“I do solemnly swear”
THE OATH
Barely two months after the rainy January morning when Donald Trump took the oath of office, the U.S. Justice Department was compelled to confront, formally in a court filing, the question of whether Trump’s oath meant anything at all.
The occasion was the mounting litigation over the administration’s travel ban. The department found itself in the unenviable position of having to convince a federal court that, although candidate Trump had campaigned on implementing a “Muslim ban” and made many disparaging statements about Islam, the executive order issued by President Trump barring entry from a number of Muslim majority countries had nothing to do with religious bigotry. There wasn’t much the department’s lawyers could do to persuade the courts that Trump’s multiple campaign statements didn’t mean what they said. And so they adopted a strategy to avoid dealing with those statements entirely: the department argued that anything Trump said about Muslims or proposed travel bans before he swore the oath of office didn’t count.
“Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution necessarily reposes in the Office of the President,” the department wrote. One cannot evaluate an “action by the President of the United States because of his statements as a private citizen—before he swore an oath to support and defend the Constitution, formed his Administration, assumed the responsibilities of governance, and consulted with Executive officials responsible for legal, national security, foreign-relations, and immigration matters.”
The Justice Department’s contention was that the oath of office is not just a ceremonial formality—rather, it has an operative, almost mystical effect. The oath, the department argued, transforms a person into a president. After taking the oath, when a president speaks and acts, he or she must be presumed to do so with necessary deliberation and with the interests of the nation in mind. When a person swears the oath of office, the logic goes, it doesn’t just remake the person; it obliterates past acts that might be unbefitting. The oath renders prior ignorance, racism, and outright lying irrelevant—at least for purposes of official consideration. The oath does this even when the person swearing it is someone who seems unlikely to make a clean break with his past.
As a legal matter, the department was on solid enough ground in invoking the distinction. How, after all, would the institutional presidency function if it had to answer for everything its current occupant might ever have said in the past? The department’s invocation of Trump’s oath was a way of reminding courts that they should treat Trump, with all his oddities, like a normal president entitled to the same deference that any other president would receive from the judiciary. But a normal president does not need to remind the courts that he or she should be treated like a normal president. That the department felt compelled to offer such a reminder was a recognition of the stark reality that judges might not instinctively think of Trump’s oath in the same way they regarded the oaths of his predecessors. They might, like tens of millions of other Americans, have doubts.
When a ruling doge died in Renaissance Venice, a spokesman for the Collegio, the collective assembly, would announce: “With much displeasure we have heard of the death of the Most Serene Prince, a man of such goodness and piety; however, we shall make another.” The governmental elite had a script to begin the public transfer of power; through words, they could make a prince, who would be transformed from whatever lesser being he might have been before.
The U.S. Constitution was not about creating princes, but if words can make a prince, then why not a president? The Constitution also contains a script to mark the transfer of power between leaders; indeed, the relevant passage is the only place in the entire document that uses quotation marks. Article II, Section 1 directs that before a president takes office, he or she pledges: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The founders of the American republic considered the presidential oath to be so important that they, like the Venetian nobility, wrote the script into the document itself.
Modern American political culture tends to give the oath short shrift. The words spoken by George Washington and Donald Trump alike have come to be viewed principally as a formality, part of the pageantry of inaugurations. The swearing of the oath is seen as a quaint nod to the continuity of our history, even as it serves as a time stamp marking the moment of transition: the magic words that—Abracadabra!—transform someone into a president, a president back into a normal citizen, and one presidential administration into another. To the extent that the oath is understood to have substantive content, it is in the promise to “faithfully execute” the office—a promise that is understood to pledge fidelity and is linked thematically to the Constitution’s other general requirement of the president, that he or she “take Care that the Laws be faithfully executed.”
Americans can perhaps be forgiven for undervaluing the oath. If it has pride of place in the Constitution, the presidential oath barely appears in Supreme Court case law. It has not historically been the subject of extensive scholarly literature. While there is exhaustive legal analysis of the meaning of the “take care” clause, the oath has largely remained unexamined, creating a false impression that it is inert and ceremonial.
Yet the people who wrote our founding document took oaths very seriously. The founders specifically considered the presidential oath—its inclusion, its words, its meaning—because they recognized that it has profound significance in the American system of government. Its execution, unlike virtually every other presidential duty, is purely mechanical; the president merely has to say the right words in the right order, and the Constitution’s terms are satisfied. At the same time, it contains substantive promises to behave in a certain way, and it embeds a conception of civic virtue in our political order. The oath is the crux of the covenant between the president, the rest of government, and the people.
Textually, the oath has two dimensions. The first is a promise regarding execution of the law. The second is a more general promise of assistance to the constitutional order. The former promise is modified by the notion of fidelity (“faithfully execute”); the latter promise is modified by a promise of effort (“to the best of my Ability”). Crucially, both modifiers presume the existence of a presidential conscience—they are operative only if some minimal level of virtue is present.
Copyright © 2020 by Susan Hennessey and Benjamin Wittes
