Breaking the Oath
Terry H. Schwadron
Dec. 15, 2022
Publication of many of the Mark Meadows emails and messages before, during and after Jan. 6 with 34 Republican members of Congress who kept pushing for more chaos to undermine an incoming president prompted thought about the coming weeks in which these very same people are taking an oath to support the Constitution.
Even after the horror of the insurrection day had been obvious, there were urgent messages to the White House chief of staff to urge yet more election fraud-based resistance, up to and including incongruously declaring “Marshall law” to turn the streets over to the military.
These are not just words, but urging for actions in pursuit of overturning elections and democracy. They are specific rejections of Constitutional provisions.
Meadows acknowledged many of the 2,300 messages on his official and personal phones that he turned over to House investigators, clearly seeing little wrong in the effort to keep Donald Trump in the Oval Office and to deny a peaceful transfer of power to Joe Biden.
Sure, much of it is outlandish stuff, as has been duly reported, first from Talking Points Memo and then the rest of the news media, and confirms how broad the efforts among Republican lawmakers to press for actions that would violate the Constitution, federal law and American traditions — even while seeking pardons for themselves in some cases.
But there is another law and tradition coming up just after the first of the year, just in time to mark the anniversary of the insurrection attempt: The new Congress is scheduled to be sworn in, complete with the oath to support the U.S. Constitution.
It asks incoming members only one thing, really, to “solemnly swear (or affirm) to support and defend the Constitution of the United States against all enemies, foreign and domestic. . . “ As I understand it, taking the oath is a requirement to the sitting lawmakers.
So, amid all the breast-beating, appeals to patriotism, calls for their own truth in election-running and the rest, one wonders how those still active Republicans calling for insurrection take this oath.
What If They Lie?
More importantly, what if they take the oath but violate it by not believing in it? An oath is a promise before voters, the nation and God, in this case, to do support the Constitution.
By my non-legal, non-judicial reckoning, if they can’t take the oath, they shouldn’t be allowed to take their seats. At a minimum, they should have to make a case to the bipartisan ethics committee.
Members of the House usually take their oath during the first day of a new Congress, when the House organizes itself. After a Speaker is elected — no guarantee this time of an easy time for Minority Leader Kevin McCarthy — the lawmaker with the longest continuous service administers the oath to the Speaker, who in turn presents the oath to the members en masse. The Speaker must swear in members who miss the mass swearing-in ceremony on the first day afterward; on rare occasions, the House has authorized other Members or local judges to swear-in absent Representatives.
Apparently, it’s been this way with adjustments since 1929. Until then, members took the oath by state delegation. But Speaker Nicholas Longworth of Ohio made it a generic oath-taking for decorum and to avoid a potential attempt to challenge the seating of Oscar De Priest of Illinois, the first African American elected to Congress in the 20th century. Since 1949 members have also been required to sign an oath, which is held by the clerk of the House.
Oaths of office and allegiance have been features of government for centuries. When the United States were colonies of Great Britain, officials swore allegiance to the king. Colonial and state legislatures also created oaths that required members to swear allegiance to the state and often profess a belief in God as well.
Donald Trump insisted that people agree to a personal loyalty oath and even sign non-disclosure agreements, a futile effort to forestall leaks and flood of tell-all books we have seen about his administration.
How Did They Get Reelected?
I suppose in such a mass swear-in of the 435 members, it is easy to mumble through it all, take the ceremonial snapshot and take your seat to continue railing away at Joe Biden’s illegitimacy in office.
Few of these returning patriots had troubles returning to office through their own elections, which must have been as equally tilted as Trump’s votes. I do have questions for their voters who apparently think gas prices are more important than trashing the Constitution (and gas prices are down again to pre-covid levels in most states). And I do have serious questions over whether some of the anti-government preaching from the Right constitute participation in illegal conspiracies that are criminally liable.
If you take an oath in a courtroom to tell the truth and then lie, you are subject to perjury prosecution. That is true is you lie under oath to congressional committees or to the FBI. Why is lying about supporting the Constitution for an incoming lawmaker any different.
There doesn’t seem to be an immediate procedure in place to block such Constitution resisters from representing home districts because we apparently didn’t believe that doing so was realistic.
We ought to watch closely if these 34 lawmakers do sign an oath that they then break by advocating the trashing of the Constitution. And then we should either prosecute them or throw them out of office.
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