The wisdom of the Oath of Office: It places a spotlight on those who swear falsely

Benjamin Wittes and Quinta Jurecic recently asked, in LawFareBlog.com, What happens when the judiciary doesn't trust the president's oath?

This weblog, in late February, described the Oath of Office recently taken by the present occupant of the White House as perjurious, The acceptance of the president-elect's supposedly solemn affirmation, the argument asserted, revealed that we have come to regard an important constitutional safeguard as a meaningless ritual:

The oath of office was meant to screen out anyone who had no intention of maintaining the order(1) of a constitutional democracy:

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 inadequacy of this provision is that it assumes that the Electoral College would not make an unprincipled scoundrel president of the United States. As Bruce Schneier reported earlier in this post, the honorable Mr. Trump made "purposeless, false and inflammatory statements before Congress." Newsmax noted yesterday, "New York Times Headline Once Again Calls Trump a Liar." Add to this the disrespect for the law involved in denigrating any judge who places the Constitution above the diktat of a government official; and the disrespect for the First Amendment revealed by the practice of declaring the media the enemy of the American people, and it should be clear that the charlatan in the Oval Office swore perjuriously.
The problem isn't that these guardrails failed. The problem is us. If we had believed in the values of liberal democracy, we wouldn't have voted for a known unfit by the millions. If we believed in our values, we would not have treated the oath of office as a meaningless ritual.

Wittes and Jurecic's discussion suggests that the Oath, far from meaningless, is having significant effect down the line. In so doing, they took the question to a deeper level. The Oath of Office is an affirmation of "civic virtue." "We think," they reasoned, "the answer lies in judicial suspicion of Trump’s oath." (Emphasis added) Then the condition of the Republic requires us to:

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.

In this situation, the "legal debate, ... about both the propriety of the President’s [immigration] order and the propriety of the judicial responses to it," reflects the problem of his ethics and his credibility:

It goes, not to put too fine a point on it, to the question of whether the judiciary means to actually treat Trump as a real president or, conversely, as some kind of accident—a person who somehow ended up in the office but is not quite the President of the United States in the sense that we would previously have recognized.

Wittes and Jurecic have thus moved the debate over the crisis of the Presidency from politics to principle. Presidency is a matter of deference; and deference cannot be accorded if the person behind the desk is manifestly lacking in civic virtue.

"What happens when people—including judges—don’t take the President’s oath of office seriously?" The perjurious presidential oath of office may have been recognized as disqualifying the "President." His lack of civic virtue means that there is "thus no concept of deference to him" ... [and] "the words of the President are not presumed to carry any weight." If so, Trump is not the strongest, but the weakest president in history.


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(1) Lincoln believed that he could not allow the South to secede, thus depriving the U.S. citizens living there of the protection of the Constitution, and yet be faithful to the Oath of Office: "You have no oath in Heaven to destroy the government, while I shall have the most solemn one to preserve, protect, and defend it."