When it came time for Chief Justice John Roberts to administer the presidential oath of office to Barack Obama on Jan. 20, 2009, to use the language of political euphemism, mistakes were made. Roberts and Obama stumbled over mis-timed phrasing. Then, trying to recover, the Chief Justice misspoke the words that are specified in the Constitution. Following Roberts’ lead, the president-elect also made mistakes in wording. This led to a do-over the next day. The oath of office could take on a whole new life in the post-truth presidency.
Article II of the Constitution, which discusses the president, specifies,
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]
It’s a single thirty-five word sentence, though it’s customary for presidents to add the phrase “so help me God,” at the end. Here’s a transcript of the 2009 ceremony, indicating the mis-cues and slip-ups that occurred:
Roberts: I, Barack Hussein Obama...
Obama: I, Barack...
Roberts: ... do solemnly swear...
Obama: I, Barack Hussein Obama, do solemnly swear...
Roberts: ... that I will execute the office of president to the United States faithfully...
Obama: ... that I will execute...
Roberts: ... faithfully the office of president of the United States...
Obama: ... the office of president of the United States faithfully...
Roberts: ... and will to the best of my ability...
Obama: ... and will to the best of my ability...
Roberts: ... preserve, protect and defend the Constitution of the United States.
Obama: ... preserve, protect and defend the Constitution of the United States.
Roberts: So help you God?
Obama: So help me God.
Roberts: Congratulations, Mr. President.
As Jeffrey Toobin (2012) reports, because of some glitches in the preparation of the ceremony, it wasn’t clear at what point Roberts would pause so that Obama could repeat the words. As a result, the Chief Justice, and then Sen. Obama, mis-timed the phrasing. It took several back-and-forths before they managed to synchronize rather than stumbling and talking over one another. In the meantime, Roberts began misstating some of the words (shown in bold): he said, President to the United States faithfully, instead of faithfully execute the Office of President of the United States. Backtracking, he tried again, saying faithfully the office of president. This time Roberts left out the word execute, which should have followed faithfully. Obama then pushed faithfully to the end of the phrase: the office of president of the United States faithfully. Midway through, they both found the plot again, and the rest of the brief oath went smoothly. Afterwards, President Obama delivered his inaugural address, then signed some executive orders as his first presidential acts. The inauguration celebrations continued on schedule into the night.
But the next day, some of the president’s staff began to wonder whether a botched oath could pose a problem. Conservatives had already expressed their intention to thwart the president’s legislative program, and birthers like Donald Trump were still questioning Obama’s eligibility to be president. And so the White House asked Chief Justice Roberts to readminister the oath in a short, private ceremony, just to make sure critics could not say that, because the oath had been flubbed, the nation had no president.
The presidential oath had been flubbed before. In 1909, Chief Justice Melville Fuller misread the oath as he swore in William Howard Taft. The error was not publicized. As Taft later wrote, “In those days when there was no radio, it was observed only in the Senate chamber where I took the oath” (quoted in Toobin 2012, 3). Thirty years later, when Taft was Chief Justice, he mis-spoke as he administered the oath to Herbert Hoover. This time the words were broadcast, and a schoolgirl wrote to Taft, who acknowledged his error, but did not think it mattered. Taft was Chief Justice, after all, and that gave his constitutional interpretation some credibility. When Justice Harlan Fiske Stone swore in Harry Truman, he mis-stated the president’s name, though Truman then said his name correctly. And in 1964, Lyndon Johnson forgot to raise his right hand until the oath was half-way done. But the Constitution does not specify that any gestures must accompany the oath.
Two previous presidents had retaken their oath of office, but not because of errors in performance: Calvin Coolidge was initially sworn in by his father, a notary public. Although the Constitution does not indicate who should administer the oath, Coolidge retook the oath before a federal judge the next day, just in case. And before that, Vice President Chester Arthur took the presidential oath privately, in his New York office, a day after Pres. James Garfield died. Arthur then repeated the oath publicly, two days later, when he got to Washington (Amtrak was slow in those days, too).
The Constitution itself offers potentially-conflicting guidance on the connection between the oath of office and the commencement of the president’s executive power. Although Article II clearly specifies that the oath is to be taken “before he enter on the execution of his Office” (emphasis added), the equally-valid Twentieth Amendment states that the president’s term begins at noon on January 20, with no mention of taking the oath first. This ensures a smooth transition of government and guarantees that there is not a nanosecond during which the country is leaderless, or, as Donald Trump might say, unpresidented. Similarly, the Twenty-Fifth Amendment provides that the Vice President becomes President when the president dies, resigns, or is removed from office, again ensuring continuity, and again not mentioning the need to take the oath of office first.
In short, Article II requires an oath, but the two amendments covering the presidential succession assume that becoming president is automatic, oath or no oath. In 2009, Barack Obama took the oath a few minutes after noon, but although a couple of people claimed—perhaps not altogether seriously—that for a minute or two the country had no president, the Twentieth Amendment ensures an automatic transfer of authority covering any gap that may exist between the expiration of the previous president’s term and the inaugural oath, the act which has come to symbolize the start of the new administration. A 1985 memorandum from the White House Office of Legal Counsel supports this view that the oath itself is not the source of the president’s power, though the memo also recommends that the oath should be taken as soon as possible (Toobin 2012). But there has never been a court test to interpret the ambiguous Constitutional language of succession, or to resolve any conflict between Article II and the Amendments. Pres. Obama’s staff organized the retaking of the oath in order to avoid any controversy, and Chief Justice Roberts, who told them, “I always believe in belt and suspenders,” had no objection to the do-over.
Obama was elected to a second term in 2012, and for the 2013 swearing-in ceremonies, he took the oath a few minutes before noon on Sunday, Jan. 20, in a private ceremony. That was the first oath of the president’s second term. And the next day, Jan. 21, 2013, Pres. Obama took the oath of office for the second time during his new term, his fourth time overall, at his Second Inaugural at the Capitol. At this public ceremony, the president stumbled over the word “States,” but he did recover, and anyway, he had already taken the oath the day before.
We like to think that the law demands exact language, with every t crossed and every i dotted, and that legal formulas like the presidential oath must be repeated to the letter in order for them to take effect. But humans are fallible creatures. These days, taking the presidential oath involves standing outdoors in frigid Washington weather, without hats, coats, scarves, or earmuffs. Add to that the daunting crowds on the Mall--more than one million people were there in 2009--not to mention the millions watching the ceremony on television. That creates some pressure on the participants, and it’s no surprise that even a well-rehearsed performance by speakers as accomplished as Obama and Roberts can go awry.
In the magic world of Hogwarts, Hermione demonstrates to Ron that you can’t levitate a feather unless you pronounce Wingardium Leviosa correctly. But in the muggle world of Washington, D.C., where human laws apply, we’re a lot more forgiving of performance errors. The drama of Pres. Obama’s first oath shows that even when the Constitution specifies the utterance of a formulaic phrase, judging whether that phrase is effective if it’s uttered incorrectly becomes a matter of interpretation. Strict constructionists like Hermione Granger or Justice Clarence Thomas might say, “It doesn't work if you say it wrong.” But in the very few documented cases of mis-spoken presidential oaths, the mistakes either went unnoticed, or they were considered too trivial to destabilize the presidency.
Given the next president’s preference for social media over the normal given-and-take of f2f interaction, don’t be surprised if on January 20, 2017, Donald Trump gets bored mid-way through the oath and ad libs the rest, instead of following Chief Justice Roberts' lead. Then, in the wee hours of the post-truth presidency, Trump denies it ever happened and tweets about something else entirely.
