Published by The Lawfare Institute
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The Constitution’s eligibility requirements for the presidency are spare, and in every formal sense, at least, Donald J. Trump meets them all: He was elected with a majority of electoral votes in a fashion that comports with the Twelfth Amendment. While he famously questioned his predecessor’s birth certificate and citizenship, nobody seems to doubt his. Trump is, as Article II, Section I, Clause 5 requires, “a natural born citizen”; he has “attained to the age of thirty five years”—with some years to spare, actually; and he has certainly “been fourteen Years a resident within the United States.”
And finally, on January 20, 2017, in apparent accordance with Article II, Section I, Clause 8, “Before he enter[ed] on the execution of his office, he [took] the following oath or affirmation:—‘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.’”
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.
This reality, and we argue here that it is a reality, is already conditioning the Trump presidency in overt ways visible every day. What’s more, we submit that these doubts about the President’s oath will inevitably shape public and institutional reaction to his service. And as a predictive matter, we believe that doubts about the President’s oath will have important and negative implications for the future of the American presidency.
To be clear, we are not suggesting that the sincerity of the presidential oath presents any sort of justiciable question. To the contrary, what makes the problem of Trump’s oath vexing and difficult is precisely that it is quite improper for the judiciary to look behind a person’s formal compliance with Article II, Section I, Clause 8—any more than the courts have mechanisms to verify that the content of a State of the Union address really meets the requirements of Article II, Section 3. It's the very definition of a political question.
Rather, our argument is both subtler and, in some respects, more dramatic: It is that 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.
That is, we argue here, what we’re seeing now. And the disruption in our expectations of the presidency, and our civic and legal responses to it will, we suspect, have a very long tail.
The day after the election, one of us wrote the following about his posture towards the new President-elect and the way he personally intended to cover Trump’s administration on Lawfare:
Trump’s election will fundamentally change my work on this site over the next few years, and probably off the site too. Because at least for me, Trump does not enter office with a presumption of regularity in his work. He does not enter office with a presumption that as President he will pursue a vision of what national security means that is remotely related to my own or that he will do so in a rational fashion—or even that he and I share a common idea of what aspects of this nation we are trying to secure.
The sentiment received a fair bit of criticism from people who thought that no president deserved such a presumption: