Authors: Jeffrey Toobin
So, like any other good lawyer, Barron looked for precedents. There was no Supreme Court ruling on the subject, but the Office of Legal Counsel issues formal opinions on a variety of matters, and Barron found one from 1985, regarding presidential succession. The Twenty-fifth Amendment to the Constitution, which was ratified in 1967, lays out what happens when a president dies or becomes incapacitated. The OLC opinion noted that, although the Constitution, “which sets forth the Presidential oath, is not entirely clear on the effect of taking the oath, the weight of history and authority suggests that taking the oath is not a necessary step prior to the assumption of the office of President and is not an independent source of Presidential power. It is, nonetheless, an obligation imposed on the President by the Constitution, and should be one of the first acts performed by the new President.” So taking the oath was recommended but not mandatory—probably.
For Barron and his colleagues at OLC, this was not just an abstract legal problem. There was a political dimension as well. Obama had made commitment to the rule of law a centerpiece of his campaign. How would it look if he skirted the rules on the oath? Perhaps more importantly, what would Obama’s political adversaries do? Article II also states that “no Person except a natural born Citizen” is eligible to be president, and a persistent group of critics claimed that Obama was not, in fact, born in Hawaii in 1961. Was it wise to tempt another
potential constitutional challenge to his qualification to serve as president?
Barron, too, saw the issue of the oath in the context of larger developments in constitutional law. Starting in the 1960s, liberals on the Supreme Court and elsewhere developed a theory built around the idea of “unenumerated rights.” Even if a right was not specifically mentioned in the Constitution, the Court could draw on the implications of the explicit provisions of the Constitution, prior decisions, and the broader evolution of American society, to expand the liberties of Americans. Most famously (or notoriously) during this period, the Court recognized a constitutional right to privacy, which became the basis for protecting a woman’s right to choose abortion.
In recent years, though, the doctrine of unenumerated rights had come under ferocious attack by conservatives. On the Supreme Court, Antonin Scalia and Clarence Thomas had led the charge for what became known as “textualism,” which said that if the Constitution did not explicitly create a right, it did not exist. A close cousin to textualism was originalism, which asserted that the words of the Constitution must be interpreted as they were understood by the men who wrote and ratified it. Under either textualism or originalism, there was no such thing as a right to privacy and, of course, no constitutional right to abortion.
As Barron knew, textualism was ascendant, and that might have implications for the presidential oath. There might be judges out there who took a literal—a textual—approach to the oath of office. If Obama had not said the precise words mandated by Article II, perhaps—just perhaps—he was not actually the president. And on that ground, any formal action Obama took might be challenged in court. At a minimum, some federal district judge might be tempted to hold a hearing on the issue. Such a legal proceeding would be a distraction, to say the least. That, certainly, was not how Obama wanted to spend his first days in office.
All in all, Barron told Craig, it might be a good idea for Roberts and Obama to redo the oath and get it right.
Greg Craig listened in amazement as Barron spelled out his concerns. It was at that point that Craig realized that he was missing a key fact. At the moment Obama took the oath the previous day, Craig had been standing by the doorway to the Capitol, awaiting the new president,
who would sign a ceremonial proclamation before heading inside to the luncheon. Craig had been sufficiently distracted that he barely heard the oath or Obama’s inaugural address.
So almost twenty-four hours later, Craig had to ask himself: What exactly
Obama and Roberts say?
It’s that time again!
In September 2008, well before Election Day, Cami Morrison sent that message to Vanessa Yarnall. Morrison was usually a staffer for the Senate sergeant at arms, but she had been detailed to the newly reconstituted Joint Congressional Inaugural Committee. Yarnall was the assistant to Jeffrey Minear, the counselor to the chief justice and his chief aide for all nonjudicial matters. Morrison and Yarnall had worked together on the presidential inauguration of 2005, and they were now starting to plan the events of January 20, 2009.
Yarnall knew that the late Chief Justice William H. Rehnquist had taken a methodical approach to the oath, and she started reassembling the paperwork he had last used. Rehnquist had sworn in five presidents, and he took an extra step to make sure that he and the president would be on the same page. Shortly before the inauguration, Rehnquist sent the White House counsel a card illustrating how he would divide up the words. In 2001, the card read:
I, GEORGE WALKER BUSH, 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.//
SO HELP ME GOD
On December 10, 2008, Yarnall sent Morrison a PDF of Rehnquist’s oath card. She removed Bush’s name and left a space for Obama’s name. In her e-mail, Yarnall asked how Roberts should address the new president: With his middle name? Just middle initial? Just first and last? Yarnall and her boss, Minear, assumed that Morrison would forward the card to representatives of the president-elect. They were wrong. Morrison either never noticed the PDF, lost it, ignored it, or forgot about it. In any case, the oath card never reached anyone on Barack Obama’s staff.
On December 15, Senator Dianne Feinstein, the chair of the Congressional Inaugural Committee, formally invited Roberts to administer the oath of office to Obama. The chief justice quickly accepted, and Feinstein’s letter prompted him to sit down with Minear and discuss the ceremony for the first time. They went over Rehnquist’s oath card with care. They added a comma after the word “ability.” They discussed whether “So help you God” was a question or a statement. And since Yarnall’s questions to Morrison had gone unanswered, they wondered what name Obama wanted to use. On December 17, Minear e-mailed Greg Craig to introduce himself and ask about Obama’s name and “So help me God.” Craig wrote back that the president-elect was on vacation, so it might take a few days for an answer.
On December 30, Michael Newdow filed a lawsuit in federal district court in Washington seeking to prevent Roberts from referring to “God” following the oath of office. In 2002, Newdow became famous when he won a ruling in the Ninth Circuit court of appeals that the Pledge of Allegiance in public schools should not include the phrase “under God.” (The Supreme Court later overturned that decision on procedural grounds.) The Justice Department lawyers handling Newdow’s latest case asked Minear to file an affidavit about how the chief justice would be administering the oath. But Minear had still not heard back from Craig. This time, Minear reached Craig by phone. Craig said that Obama wanted to include his middle name in the oath and that Roberts should say “So help you God” as a question. On January 8, 2009, Minear included Craig’s responses in an affidavit in the Newdow lawsuit, which was quickly dismissed by a local federal judge.
Craig’s answers allowed Minear to put Roberts’s presidential oath card into final form. It now read:
I, BARACK HUSSEIN OBAMA, 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.//
SO HELP YOU GOD?
Vanessa Yarnall e-mailed the revised version to Cami Morrison, who again did not pass it along to the president-elect’s team. Indeed, in the days leading up to the inauguration, neither Obama himself, Craig, nor anyone else associated with them knew that the card existed.
At this point, with the text in final form, John Roberts set about memorizing the oath.
There never was a student like John Roberts at the La Lumiere School in LaPorte, Indiana, a quiet town near Lake Michigan, on the outer edges of the gravitational pull of Chicago. It was a Catholic school, but it was independent of any order or diocese; the founders, all laymen, built the institution around an ideal of academic excellence.
Roberts was not just the valedictorian of the class of 1973. He served as captain of the football team, a varsity wrestler, member of both the student council and the drama club. (He played Peppermint Patty in
You’re a Good Man, Charlie Brown
; the school was all boys in Roberts’s day.) He continued taking Latin, as a tutorial, after the school dropped the language as a requirement. La Lumiere had a traditional curriculum, but there was one slight novelty. Every year, the students were expected to participate in what was known as a declamation contest, where they would write and memorize their own speeches. In this Roberts excelled, too.
Over time, Roberts became famous for his superb memory. As a lawyer,
both in the solicitor general’s office and in private practice, he was known as perhaps the finest Supreme Court advocate of his generation. But it was not just his arguments that dazzled. Roberts’s personality inspired confidence, especially because when he stepped to the podium to argue before the justices, Roberts brought nothing with him—no pad, no notes. He carried the facts and the law of each case in his head.
Roberts relied on his memory—and, as always, hard work—in preparing to administer the oath. He rehearsed many times. He recited the words so often at his home in suburban Maryland that he irritated his wife. “At this point the dog thinks it’s the president,” Jane Roberts told her husband.
On the late afternoon of January 13, 2009, Roberts went to the west front of the Capitol for a walk-through of the inauguration. A handful of congressional staffers showed him his assigned seat and told him when and where he would stand. Toward the end of the meeting, one of the aides offered a card to Roberts with the text of the oath. Did he want to rehearse?
“That’s OK,” Roberts said, declining the text, “I know the oath.”
A week later, on the morning of the inauguration, the justices gathered at the Supreme Court for a small reception, before heading across First Street as a group to the Capitol. The chief justice is a largely invisible figure to most Americans, except for this single appearance every four years. Roberts seemed uncharacteristically subdued as he waited.
A throng of more than a million people filled the National Mall all the way to the Washington Monument. At the stroke of noon, Dianne Feinstein introduced Roberts and asked the audience to stand. (Feinstein called Roberts by his correct title, chief justice of the United States; four years earlier, Trent Lott, in the same role, managed two breaches of protocol in less than a minute. He incorrectly called Rehnquist the chief justice of the Supreme Court and then summoned him to the podium as “Justice Rehnquist.” Rehnquist was a stickler for being called “Chief Justice.”)
“That’s for you,” Obama whispered to his wife, Michelle, as she reached for the “Lincoln Bible,” which had last been used when the sixteenth president placed his hand upon it in 1861.
“Are you prepared to take the oath, Senator?” Roberts said.
“I am,” said Obama.
Roberts raised his right hand at a crisp right angle. Unlike Rehnquist, Roberts did not carry a copy of the oath in his left hand. The chief justice began, “I, Barack Hussein Obama, do so—”
Obama jumped in and began to recite, “I, Barack …”
Roberts and Obama clearly had different ideas about whether “do solemnly swear” would be included. Roberts’s oath card included “do solemnly swear” in the first line—but Obama had never seen this text.
Recognizing that he had interrupted Roberts, Obama paused to let Roberts continue. Obama then recited correctly, “I, Barack Hussein Obama, do solemnly swear.”
But Roberts—most uncharacteristically—became flustered when he thought that Obama had jumped the gun and interrupted him, and he said next, “That I will execute the office of President to the United States faithfully.” “To” the United States? “Faithfully” after United States? Obama gave a half smile. He could tell it was wrong.
“That I will execute …” Obama said, but then he saw that Roberts was again trying to speak, endeavoring to salvage the situation on the fly.
“The off—” Roberts stumbled again. “Faithfully the office of President of the United States.” This time he had left out “execute.”
Obama was confused. He said, “the office of President of the United States faithfully”—incorrectly putting “faithfully” at the end of the sentence. The two men finally put that troublesome phrase behind them.
“And will to the best of my ability,” Roberts said.
“And will to the best of my ability,” Obama repeated.
“Preserve, protect and defend the Constitution of the United States,” Roberts said quickly, trying to finish without further problems.
“So help you God?”
“So help me God.”
“Congratulations, Mr. President,” Roberts said, extending his hand. “All the best wishes.”
Now what? Craig wondered.
Later on January 21—in a few minutes, in fact—Obama was to sign
a series of executive orders and presidential memorandums relating to government ethics. He was going to freeze the salaries of White House staffers making more than $100,000 a year and establish new rules to limit lobbying by former government officials. But it was the events planned for January 22 that really worried Craig. Obama was scheduled to sign a lengthy executive order to begin the process of closing the detention facility at Guantánamo Bay. As a private lawyer, staffer to Senator Edward Kennedy, and Clinton-era State Department official, Craig had a long commitment to the cause of international human rights. Obama’s passion for the subject drew Craig to support the young senator over Hillary Clinton in the primaries, even though Craig had known her for decades and served in her husband’s administration. Many times during the campaign, Obama had pledged to close Guantánamo. The last thing Craig wanted to do was undermine Obama’s authority to take this action.