So What If He’s Breached His Oath of Office?
By Clark Havighurst
Imagine someone discovers an incontestable photo of Donald Trump’s hand on the bible at his swearing-in, with two fingers obviously crossed. What would likely happen? Answer: Probably nothing since many commentators have charged him with actual violations of his oath of office, yet very few seem to think such violations, or the oath itself, matter legally. Thus, Mr. Trump remains in office while everyone awaits results from Robert Mueller’s lengthy investigations into his connections with Russia. Has the Mueller inquiry perhaps been a red herring, diverting attention from a more fundamental problem with the Trump presidency?
Most constitutional lawyers read the Constitution’s impeachment clause — which focuses attention on “high Crimes and Misdemeanors” — as making presidents removable only for acts similar to conventional crimes such as the Mueller investigation may (or may not) uncover. Yet the Constitution’s framers, while not wanting impeachment to be easy or frequent, may have viewed it as more than an opportunity to prosecute quasi criminal acts. In particular, they may have wanted “We the People” protected against a president who regularly fails, as the oath of office requires, to “faithfully execute the Office of President” and to “preserve, protect and defend the Constitution.”
As it happens, there are ample reasons to conclude legally as well as politically that a president’s recurrent violations of the oath in potentially consequential ways can constitute an impeachable crime or misdemeanor. The framers, fearing monarchy, not only wrote the oath into the Constitution’s text but made taking it the ultimate condition for assuming the presidency. George Washington, having presided over the constitutional convention, acknowledged as president that “constitutional punishment” might follow if he breached his oath.
In the framers’ time, solemn oaths were assumed to have more than ceremonial significance. True, the custom of having presidents swear on a bible suggests accountability to God. But the Constitution is a secular document intended to create a republic with governors accountable to the governed. As the definitive expression of the public trust each president accepts, the oath of office is the apparent keystone of presidential accountability. Would any of today’s experts — or Mr. Trump’s supporters, for that matter — be so bold as to argue that, because the Constitution is a “living” document, sworn oaths are not as constitutionally significant today as they were in the age of the Enlightenment?
Approaching impeachment as akin to criminal law enforcement has made it a notably transactional affair, whereas it could be an opportunity to examine a president’s job performance holistically in light of the oath’s obligations. One can easily interpret the framers’ reference to “high Crimes and Misdemeanors,” not as necessarily criminalizing the process, but as their way of making impeachment a truly grave matter of state.
The words “faithfully execute the Office of President” had no established (that is, “original”) meaning when the framers included them in the prescribed oath. President Washington was therefore famously conscious that his actions and behavior would be precedents by which the oath would acquire meaning for his successors. Lawyers seeking to discern the drafters’ original intent must surely find an expectation that each subsequent president would generally conform to norms established by his or her predecessors.
Obviously, in looking always narcissistically inward and not respecting historic norms, Donald Trump is no George Washington. Indeed, from his inauguration forward, he has regularly behaved in ways virtually proving he is not committed to — and may be constitutionally incapable of — executing his office “faithfully” to anything but his own impulses and interests. (Need one say more?)
Regarding his pledge to “. . . defend the Constitution,” Mr. Trump has revealed a weak appreciation of freedom of the press, the rule of law, an independent judiciary and the separation of governmental powers. His recent declaration of a national emergency in order to obtain funding for a border wall was probably an unconstitutional attempt to usurp Congress’s budgetary authority. Although it might be hard to accuse Mr. Trump of specific, clearly impeachable offenses against the Constitution, Congress could legitimately decide that his cumulative record adds up to the crime or misdemeanor of governing in continual and reckless disregard of the oath he “solemnly [sic]” swore.
Some will argue millions of voters are comfortable with Mr. Trump’s disruptive personality and willingness to offend elite opinion. But the Constitution does not authorize the electorate to choose, or necessarily retain, a president not subject to the oath of office. The 116th Congress, without waiting for a particular “gotcha” moment or disclosure, could easily state a convincing impeachment case against Mr. Trump for being dangerously unwilling or unable to govern himself according to his oath.
Even so, it is hard to imagine any impeachment of Mr. Trump proceeding as the serious undertaking it should be — with all members of Congress honoring their own oaths to defend the Constitution ahead of their own partisan or personal interests. There are therefore good reasons why the House of Representatives should be doing little more, now, than holding hearings on the oath of office itself, calling on presidential historians and constitutional experts to examine its meaning and modern-day significance. Whereas the long-awaited Mueller report is expected to be no more than “the end of the beginning,” such hearings might discover a blessedly shorter cut to ending this mostly regrettable presidency. Democrats might also benefit themselves politically by thus putting their obsessive anti-Trump campaign on a somewhat higher road.
Clark Havighurst retired from Duke Law School in 2005 as the Wm. Neal Reynolds Professor Emeritus of Law. His principal academic interests were in antitrust law and health care law and policy.