The second of the elements I set forth in last week’s post about former President Donald Trump’s possible disqualification based upon Section 3 of the Fourteenth Amendment is the question of whether Trump took an oath to support the Constitution of the United States. Here again we face the unusual situation that the only time when he would have taken such an oath was when he was inaugurated as President on January 20, 2017, as he did not previously hold any public office that would have required an oath. But the oath he took that day does not promise to “support” the Constitution.
As I stated in my last post, Article VI requires an oath to “support” the Constitution be taken by “Senators and Representatives . . ., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” Uniquely, the wording of the oath required to be taken upon assuming the presidency is specifically set forth in the Constitution: “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.” A new President swears to “preserve, protect and defend” the Constitution, not to “support” it.1
The petition in Anderson v. Griswold, the Colorado case seeking to exclude Trump from the ballot, does not directly address this point. Paragraph 353 correctly references the wording of the oath that Trump was required to, and did, take, to “preserve, protect and defend” the Constitution, but paragraph 358 merely concludes that this oath was an “oath … to support the Constitution of the United States.”
As with the question of whether the President is an “Officer,” I do not believe that the authors of the Fourteenth Amendment affirmatively intended to immunize a President from potential disqualification, I just don’t think they were particularly worried about it or considered that the presidency would be the first public office a person would obtain.
Jay Bohn
September 14, 2023.
- I am not aware that anyone has ever taken the position that the President must take an oath under Article VI in addition to the oath prescribed by Article II, and there is certainly no suggestion that President Trump actually did so. ↩︎