In the course of a discussion over at Marginal Revolution, prior_test2 linked to a most interesting post at Lawfare by Benjamin Wittes and Quinta Jurecic entitled “What Happens When We Don’t Believe the President’s Oath?” As title suggests, it centers on the President’s Oath of Office, which is quite brief: “I do solemnly swear . . . 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.” Their point is that it is this oath the links the private individual, Donald J. Trump, to the public office, President of the United States, and both binds him to that office and separates his private interests and concerns from that office.
There’s only one problem with Trump’s eligibility for the office he now holds: The idea of Trump’s swearing this or any other oath “solemnly” is, not to put too fine a point on it, laughable—as more fundamentally is any promise on his part to “faithfully” execute this or any other commitment that involves the centrality of anyone or anything other than himself.Indeed, a person who pauses to think about the matter has good reason to doubt the sincerity of Trump’s oath of office, or even his capacity to swear an oath sincerely at all. We submit that huge numbers of people—including important actors in our constitutional system—have not even paused to consider it; they are instinctively leery of Trump’s oath and are now behaving accordingly.
...the presidential oath is actually the glue that holds together many of our system’s functional assumptions about the presidency and the institutional reactions to it among actors from judges to bureaucrats to the press. When large enough numbers of people within these systems doubt a president’s oath, those assumptions cease operating. They do so without anyone’s ever announcing, let alone ruling from the bench, that the President didn’t satisfy the Presidential Oath Clause and thus is not really president. They just stop working—or they work a lot less well.
By way of clarification:
There’s a big, if somewhat ineffable, difference between opposing a president and not believing his oath of office. All presidents face opposition, some of it passionate, extreme, and delegitimizing. All presidents face questions about their motives and integrity. Hating the President is a very old tradition, and many presidents face at least some suggestion that their oaths do not count. Obama, after all, was a foreign-born Muslim to his most extreme detractors.Yet, for a variety of reasons we discuss below, there is something different about the questions about Trump’s oath, and it is how widespread and mainstream the anxiety is. It’s also, and we want to be frank about this, how reasonable the anxiety is when applied to a man whose word one cannot take at face value on the prepolitical trust the oath represents. That person does not get certain presumptions our system normally attaches to presidential conduct.
And so we have:
On the contrary, the belief that there is something different about this president is extraordinarily common among sober commentators of both the left and right—and, even more notably, among many of those with significant experience in government in both career and political roles.So why the doubts? For one thing, Trump’s highly erratic statements and behavior include any number of incidents that seem to reflect a lack of understanding of his office or its weight. It’s not just the tweets. This is a person, after all, who suggested before the election that he might not even serve as president if he prevailed; who then said that he would accept the results of the election “if I win”; who made up a whole lot of voter fraud; who promised to prosecute his opponent; who, in his first public address following the inauguration, stood in front of the CIA’s Memorial Wall and bragged falsely about the number of people who attended his inaugural ceremony; who has made use of the immense power of the bully pulpit to publicly complain about the “unfair” decision by a private retail company to drop his daughter’s fashion line; who approached the process of selecting a Secretary of State, National Security Advisor, and nominee to the Supreme Court in a manner more fit for reality television than the office of the presidency; who refused to accept responsibility for the death of a Navy SEAL in a botched counterterrorism raid conducted on his orders, claiming instead that “this was something they [the generals] wanted to do,” before standing in front of Congress and apparently ad-libbing that the SEAL was looking down with happiness from Heaven because Trump received extended applause during his address; and whose most memorable quotation coming out of the presidential campaign was the inimitable, “Grab ‘em by the pussy”—a phrase he then dismissed as “locker room talk.”Moral seriousness and respect for his office just isn’t his thing.This is also a person whose campaign was rife with promises to commit crimes and to abuse the powers of the very office for which he then took the oath.The combination of the sprawling nature of his business and the intentional obscurity of his finances is also a factor.
The article is long and serious and heads toward this, concerning the courts:
So what does it look like when large numbers of people do not trust the President’s oath and, as a consequence, do not believe he “enter[s] office with a presumption of regularity in his work”? It looks something like what we’re seeing now, in which a wide array of actors simply do not afford deference to presidential actions and words.Let’s start with the courts. There’s much to argue about in the astonishing flood of judicial opinions that followed Trump’s issuance of his executive order on visas and refugees. For present purposes, the only point is that a very large number of judges around the country behaved in a fashion untouched by deference or any kind of presumption of regularity in the President’s behavior: by our count, at least eight district courts and one circuit court have issued stays or temporary restraining orders against the executive order. Note that they did this in an area of broad statutory grants of power to the president in the face of a claim by the President that he was acting to protect national security. They intervened rapidly. And their lack of deference was, in some cases, proud.
And then there’s the leaks by the bureaucracy:
A similar instinct lies, we believe, behind the unprecedented barrage of leaks that has plagued the Trump administration since the day the new president took office. Even Lawfare, which has never before published leaks, has received and published leaked information from government officials uncomfortable with the administration’s policies. Leakers have released drafts of executive orders, along with a draft Department of Homeland Security intelligence report contradicting the administration’s claims on the critical necessity of the travel ban to national security. They have given reporters personal and embarrassing details on the president’s mental state, and have continued to inform the press on the classified details of the Russia Connection as investigations into election interference by the Kremlin and the Trump campaign’s contact with Russian officials unfold—to the dismay of the President, who has called for an investigation into the leaking and insisted that information being leaked is “fake news.” […]The point is simply that when the bureaucracy doubts the president’s oath, that fact gravely frays the executive’s ordinary comparative unity. The people who work for the president no longer connect loyalty to the executive branch with the lofty goals to which the oath seeks to bind the president, so they become much more likely to act on their own.
And then there’s the press, it
no longer presumes that any presidential statement is true. It gleefully corrects errors and misstatements. It has no compunction about alleging that such errors are active lies. And major press figures seem to have little reservation about overtly political comments about Trump and the administration.
What does this mean?
Imagine a world in which other actors have no expectation of civic virtue from the President and thus no concept of deference to him. Imagine a world in which the words of the President are not presumed to carry any weight. Imagine a world in which far more judicial review of presidential conduct is de novo, and in which the executive has to find highly coercive means of enforcing message discipline on its staff because it can’t depend on loyalty. That’s a very different presidency than the one we have come to expect.It’s actually a presidency without the principle that we separate the man from the office. It’s a presidency in which we owe nothing to the office institutionally and make individual decisions about how to interact with it based on how much we trust, like, or hate its occupant.
And if “we owe nothing to the office institutionally” what does that mean about the government of laws, not of men?
Back in the middle of November I wrote a post meditating on the Netflix series, The Crown, about Queen Elizabeth II of England in which I asserted: “One of the major themes of The Crown, perhaps THE major theme, though I’m only five episodes in […], is the conflict between personal life and public duty. By contrast, the Presidential election seems to have been dominated by confusion between private life and public life.” And now the administration is confounded by that confusion.
No matter what happens, it will be a rocky ride.