Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?
American people have been treated to an unedifying sight: first, a President
lying under oath in a sexual harassment suit. Then, as a scandal became
public, a President who summoned up not just his own personal credibility,
but every shred of respect and deference Americans hold for his office,
in an all-out denial "to the American people." Finally, after seven months
of denial, a President who was prepared to lie outright to a grand jury
until a certain dress turned up, but when his lies became untenable, chose
to tell the grand jury half-truths rather than the real truth. Americans
witnessed their President behaving in a grand jury like a smarmy suspect
on "Columbo," smugly delivering an unspoken challenge: "You know I'm lying,
and I know you know I am, but you can't pin it on me." They see a President
who not only did something wrong, but continues to do so,
sticking by his perjuries and planning to repeat them if need be to Congress,
a reinstated Paula Jones case, or any other forum. They have seen a man
who, rather than acting as a moral leader for Americans, has instead sought
to drag the country down to his level so his sins won't look that bad,
a man willing to damage any institution of society- the system of civil
justice ("it was just a civil suit"), the law ("don't tell the whole
truth, be legally accurate"), the rights of women ("every boss gets one
free grope"), the Presidency itself ("the President is just an economist")-
in a naked grasp for survival.
In the current controversy over Bill Clinton, many of his apologists have argued that Clinton's perjuries do not meet the standard of "treason, bribery, and other high crimes and misdemeanors." They suggest that impeachable offenses must be on the same level as treason and bribery, and that lying under oath- at least about this subject matter- does not rise to that level.
These arguments have led some to trace the origins of that stark term, "high crimes and misdemeanors," to show that it would indeed cover President Clinton's wrongdoing. However, is this really all the guidance the Constitution offers us? Before leaving the Constitution, perhaps we should see if it has anything to say on the subject of oaths.
In fact, there are three instances where the Constitution mentions oaths.
The first mention, ironically enough, arises in connection with Senate impeachment trials: "The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation." (Article I, Section 3)
The second mention relates to the President: "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.'" (Article II, Section 1)
The last instance comes at the conclusion of the Constitution: "The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and the several states, shall be bound by oath or affirmation, to support this constitution..." (Article VI)
What does this mean?
Let us take these three instances in reverse order.
The Constitution is not a detailed document. The Framers were careful not to get bogged down in minutiae, and not to tie the hands of future generations with prescriptions and proscriptions that might not be applicable in later times. They took care to embody in their document that which was of lasting value. For instance, they did not specify how many judges should sit on the Supreme Court, or how many members should sit in the House of Representatives in the future.
It is important, then, that the Founding
Fathers would take care to specify that state and federal officers were
to bind themselves by oath or affirmation to the constitution. Clearly,
they hoped oaths would have a beneficent influence on the conduct of public
officers. It is just as important to note that they bound only public officials
with this obligation, not asking the general population to take such an
oath. They knew that mandatory oaths would reduce the reverence of the
citizenry for oaths. Oaths had to be used sparingly, in special situations,
so citizens would feel their force. They wanted public officers to know
they were taking on special obligations, and not cheapen their oaths by
putting them on the same level as the public. They are, after all, oaths
The second instance occurs at the end of Section 1 of Article II, requiring the President to take an oath before assuming office. This is intriguing, for the later clause in Article VI might seem to make this redundant. Senators, representatives, judges, and other officers are also required by that clause to take an oath, but this is not mentioned in their sections. Yet Article II not only repeats the obligation on the President to make an oath or affirmation, it specifies the exact wording he is to use- something the Framers did not do with respect to any other officer.
Clearly, then, the Framers considered it
especially important that the President be bound by oath. That they
would demand the exact wording of an oath in a document as general as the
Constitution is striking. This makes it clear that these mentions of oaths
are no afterthoughts, but that the Framers thought carefully about what
they were saying. And it makes it clear that they wanted the President
above all other officers to be a man of honor.
The first mention in the Constitution of an oath arises, as stated, in connection with the Senate trial of impeachment.
Again, what is striking is that the Framers
would take care to specifically mention that Senators would be under oath,
when they say so little about how an impeachment trial is to be carried
out. Let us review the entire passage dealing with Senate trials:
The Senate shall have the sole power to
try all impeachments. When sitting for that purpose, they shall be on oath
or affirmation. When the president of the United States is tried, the chief
justice shall preside: And no person shall be convicted without the concurrence
of two-thirds of the members present.
Judgment in cases of impeachment shall
not extend further than to removal from office, and disqualification to
hold and enjoy any office of honour, trust or profit under the United States;
but the party convicted shall nevertheless be liable and subject to indictment,
trial, judgment and punishment, according to law.
And that is it! Consider what is not mentioned. Who prosecutes an impeachment? What sort of counsel is the defendant permitted? What are the rules of evidence? What standard of proof should Senators follow? That the Framers would consider it more critical to specify that Senators were to take a solemn oath, than to spell out such important questions of process, shows how seriously they took oaths. Rather than laying down detailed rules of procedure as the Constitutional safeguard of justice, they relied on an oath to remind Senators of the solemnity of their duty.
And perhaps this oath did make a difference. Clinton defenders sometimes like to compare him to the only President who has faced an impeachment trial, Andrew Johnson, who was tried on trumped up charges. A change of just one Senator's vote would have removed him from office. He survived because of seven Republican Senators who decided they could not vote against their conscience. Johnson was a deeply unpopular President. Those Senators were not re-elected- and they voted knowing they would not be. If they had not had to take that oath, if they had not been honor-bound by the solemn demands of justice, or if they had treated their oath as seriously as Clinton treated his oaths, would political considerations have triumphed in the thinking of at least one of those Senators?
All of this makes clear just how dangerous it is to have an unreconstructed oath-breaker as President. Impeaching Bill Clinton does not just defend the sanctity of oaths in civil trials, or in grand juries, or in criminal cases and before Congress, but of that oath to "preserve, protect, and defend the Constitution of the United States." The Founders took oaths seriously. They intended for oaths to be one of the integral defenses against tyranny. They expected oaths to weigh on the sense of honor of public men, to bind them to the limits of the Constitution. Of course, they knew that not all men could be relied upon to keep their oaths, to revere that obligation. But they put in place a remedy, impeachment, to expel just such men from positions of public trust. It is time to make use of that remedy today.