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Ben Wittes and Quinta Jurecic on the “Oathless Presidency”—Questions raised by deep distrust in Trump

Just Security and the Center on Law and Security at NYU School of Law were delighted to host an event today for our friends from Lawfare, Ben Wittes and Quinta Jurecic, for a discussion of their essay, “What Happens When We Don’t Believe the President’s Oath?” I served as the discussant, and thought to write up some of the questions that I raised.

The thesis: Ben and Quinta’s basic argument is that Donald Trump’s oath of office as President is essentially in grave doubt because he has demonstrated that he is unwilling or unable to execute the commitment. The oath is contained in Article 2, section 1(8) of the U.S. Constitution:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“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 doubt in Mr. Trump’s oath, according to Ben and Quinta. is due to his willingness to lie, his fundamental disregard for democratic institutions, and other matters. Ben and Quinta describe the effects of this lack of trust, pointing to the rupture of relationships with courts, within the executive branch, and with the press. They then point to future, potentially generational, implications—ranging from a long-term degradation of the institution of the presidency to a reversion to a normal regard for regular and decent order by the next occupants of the Oval Office.

Here are some discussion points that I thought to raise:

1. Is the oath of office the proper focus?

There’s little evidence, as Ben and Quinta fully acknowledge, that the oath is a part of the regular diet of constitutional law experts or constitutional law discourse more generally in our country today or in decades prior. And the social and political significance of an oath in the 18th century compared to today is potentially vastly different. Those facts raise questions about the reliance on the oath for this type of argumentation. In addition, a focus on the oath might be too narrow—do we risk getting into the weeds of the meaning and purpose of the oath, rather than the broader concerns that Ben and Quinta otherwise identify, such as issues of official disinformation and systemic corruption? Are the federal judges who have pushed back against Mr. Trump paying attention to his oath of office, or rather to more diffuse and broader concerns about him and his administration? On the other hand, the oath might be too broad: perhaps we should instead identify more specific practices of the Office of the President upon which specific forms of deference are predicated. For example, in a filing in litigation over the immigration and executive order, 10 former senior officials wrote: “The ‘considered judgment’ of the President in the prior cases where courts have deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies.” Perhaps the answer is a specific focus for some pieces of this puzzle and a broader focus for others, and we have Ben and Quinta to thank for getting us started.

All that said, perhaps the oath serves as a valuable heuristic and has “stickiness” as a psychological framing device—another reason to keep it as the focus.

2. How much of the analysis turns on public perceptions of Mr. Trump versus an objective, descriptive account of him?

Does it matter for the analysis—including the accuracy of the descriptions, the reliability of the predicted effects—what percentage and which segments of the public distrust Trump in the profound ways that Ben and Quinta suggest? Their essay discusses, at some length, the President’s approval ratings, and contends that profound doubts about Trump are “extraordinarily common among sober commentators of both the left and right.” But, what if that’s wrong? What if it is more fringe and more elitist than Ben and Quinta (and I) assume? Perhaps that means some institutions will be less likely to push back or counteract Trump (see Rick Hill’s analysis of how public mobilization is necessary to stiffen the spine of judges and bureaucrats). Perhaps it amplifies some of Ben and Quinta’s concerns. That is, perhaps it means we live in a more challenging and ideologically divided environment in which some of the disruptive effects of the Trump administration will be even greater as powerful but narrow segments of our society maintain profound doubt in his faithful execution of the oath of office, while others don’t.

3. Aren’t similar issues raised by past presidents, in large or in small part, and what can we learn from such cases?

America has many examples of a president who was, either actually or perceived to be, serving interests other than those required by the oath of office. This history includes episodes in which presidents have put party or personal reputation above the interests of the nation—in matters of war and peace—and have had scorn or disregard for large segments of our population. What can these episodes tell us about the ability of our system to correct itself, the tendency of the press to learn from its mistakes over time, the capacity of subsequent presidents to escape those legacies of the White House? What can they tell us about how people, within different institutional settings–the bureaucracy, the media, academia, and elsewhere–ought to behave when they genuinely believe their president is not living up to the oath of office?

4. What might be important beneficial effects of a Trump presidency?

It is not hard to think of all the awful effects of the Trump presidency (take a glimpse at Just Security‘s Norms Watch–chronicling the erosion of democratic and rule of law norms). However, should we also think about opportunities created–in creating a more skeptical press, in placing more pressure on future administrations to increase their level of transparency, in galvanizing civic organizations? Does the Trump presidency also open up policy space because he is such an anomaly? For example it might be wise to support the partition of a country such as Iraq to achieve a more stable and peaceful equilibrium, but policymakers would worry about the precedent and incentives such an approach sets for other countries in the future. But Trump is sui generis—what he does in these four years will not set as reliable an expectation for how the world’s superpower will behave in the future. In short, what might be the hidden upsides to the Trump phenomenon? Finally, what forms of disruption are either good policy or a reflection of legitimate disagreement over different visions of good policy? We should be careful in our discourse to keep those kinds of issues separate. 

Stay tuned for a video of today’s event. In the meantime, I very much recommend Ben and Quinta’s essay for your weekend reading. Thanks to the two of them for being our guests today!

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. He served as Special Counsel to the General Counsel of the Department of Defense (2015-16). You can follow him on Twitter (@rgoodlaw).