Article II: Inside Impeachment
The President’s Oath
Archival Recording: The chief justice of the United States, John G. Roberts, Jr., who'll administer the presidential oath of office. Everyone please stand.
Steve Kornacki: From NBC News, this is Article II: Inside Impeachment. I'm Steve Kornacki, today is Friday, January 3rd.
John G. Roberts, Jr.: Please raise your right hand, and repeat after me. I, Donald John Trump, do solemnly swear.
Donald J. Trump: I, Donald John Trump, do solemnly swear--
Archival Recording: Do solemnly swear--
Barack Obama: Do solemnly swear--
Archival Recording: Do solemnly swear--
Kornacki: The presidential oath of office, Article II, Section 1 of the Constitution requires that every president-elect complete a 35-word oath before taking office.
Trump: That I will faithfully execute--
Archival Recording: --faithfully execute the office--
Archival Recording: --of president of the United States.
Archival Recording: That I will faithfully execute the office of president of the United States.
Bill Clinton: --the office of president of the United States.
Kornacki: Article II of the Constitution also outlines impeachment, a situation we find ourselves in today, as the 45th president of the United States, Donald Trump, faces potential removal from office.
Archival Recording: You do not uphold your oath of office. Well I will tell you this: I will uphold mine. I will vote to impeach Donald Trump.
Trump: Nobody ever mentions Article II. There I have in Article II, where I have the right to do whatever I want as president, but I don't even talk about that.
Nancy Pelosi: That's not what our founders had in mind. That's a president-king. That's not what we're about here.
Kornacki: So what did the founders have in mind?
Trump: And will, to the best of my ability--
Archival Recording: And will, to the best of my ability--
Trump: --preserve, protect, and defend--
Archival Recording: --preserve, protect, and defend--
Archival Recording: --preserve, protect, and defend--
Archival Recording: --preserve, protect, and defend--
Clinton: --preserve, protect, and defend the Constitution of the United States.
Archival Recording: --preserve, and protect, and defend--
Archival Recording: --the Constitution of the United States.
Trump: --the Constitution of the United States.
Archival Recording: So help you god.
Trump: So help me god.
Kornacki: Today on Article II, we'll explore the oath of the highest office and what happens when it's tested. Chuck Rosenberg served as a career federal prosecutor and later as the United States attorney for the Eastern District of Virginia. He has also served in senior positions at the Department of Justice in the FBI and as the head of the Drug Enforcement Administration. Chuck is currently an MSNBC contributor and the host of the podcast, The Oath. Chuck, you've got a resume that puts all, certainly me, to shame. But welcome, thank you for being here.
Chuck Rosenberg: I think the only thing it proves, Steve, is that I can't keep a job.
Kornacki: (LAUGH) Okay, well, that's one way of lookin' at it, I guess. The theme today is oaths. The theme of your podcast, obviously. I'm curious. Every four years we watch the president of the United States take the oath of office from the chief justice of the Supreme Court.
If we serve on a jury, maybe we've been sworn in as a juror. Maybe we've seen a witness sworn in, in a movie about a courtroom scene. We've seen oaths. And I think, at least, again, speaking from my own experience, that they often seem very sort of ceremonial, formulaic.
I wonder about your experience. You've taken, I think, ten oaths in positions of high public trust. What is your experience like, being administered one of those oaths? And is it something that lingers with you once in office? What does the oath mean to you?
Rosenberg: Yeah, I have taken it, I think, ten times. I've also administered it, Steve, perhaps hundreds of times. Most recently when I ran the DEA, to new special agents, to new diversion investigators, to new intelligence analysts, and to new chemists.
And I gotta tell you, it is a very solemn moment. It may seem formulaic, but it's not. And it's something that stays with you, and has stayed with me all of my professional life. I remember where I took it. I remember who administered it. And I remember thinkin', "This is a big deal."
Kornacki: Can you think of one of those? Maybe the first time, what that experience was like? Take us back to it.
Rosenberg: Very first time, I was a new graduate from the University of Virginia Law School. I had joined the Department of Justice through the Attorney General's Honors Program, and with a group of ten or 12 brand new colleagues in a small conference room on the fourth floor at the Department of Justice, the assistant attorney general at the time, Shirley Peterson, swore us all in.
I'll never forget it. But I also remember taking that oath when I became U.S. attorney, both in Virginia and Texas. I remember Bob Mueller administering the oath to me when I returned to the FBI in 2013, as he was just finishing his 12th year as director. It's, like I said, a solemn moment, and it stays with you.
Kornacki: Do the words come to you at critical moments when you have a decision to make, when you a face a dilemma, at all? Are you thinking back to the words?
Rosenberg: Well, I don't know that I ever sat down and said, "You know, this is a tough decision that I have to make. Let me pull out the oath and read it again." I mean, what you're really making is a promise to be diligent, to be faithful to the Constitution and to the rule of law.
But I'm hoping for people who are drawn to this type of work that they don't need an oath to remind them of the importance, the sanctity of the positions that they hold. That this is who and what they are, and the oath is really a way of reaffirming that publicly.
Kornacki: So let's talk about the oath in the context of this impeachment drama. The oath of the president of the United States. I mentioned, every four years, January 20th, we all watch on television a new president or a re-elected president puts his hand (so far; someday it'll probably be a "her hand) on the Bible, takes the oath of office from the chief justice of the Supreme Court. Talk about the contents of that oath. I think we all know the words, but what do they mean?
Rosenberg: Well, interestingly, Steve, the oath that the president takes upon assuming office is the only oath in which the Constitution specifies the precise words that have to be used. That's not true for the oath I took. That's not true for the oath that members of the House or Senate take.
Only for the president. And it's really rather simple. It's three dozen or so words. It's not extensive. It's not detailed. It's not specific. It's very sort of high-minded. It's a promise to faithfully execute the job, and to preserve, protect, and defend the Constitution of the United States. I think by design it's not specific. We expect a lot from our presidents. Some of them have lived up to the promise. Some of them have not.
Kornacki: Yeah. So in this current moment, you've got the president of United States has been impeached. Democrats say he has violated his oath of office. It's a broad oath. Does that make it difficult for Democrats to make an argument, or for anyone to make an argument about any president, that they've violated their oath?
Rosenberg: Sure. Because it's really not a legal promise as much as a moral promise that presidents are making when they take that oath. And so what may appear to be, you know, a violation of that oath to one person may not be a violation to another. These are political judgments that members of Congress will make about this president, or others presidents.
Whether he has committed high crimes or misdemeanors, whether he should be removed from office upon trial in the Senate. These are, in the end, political judgments. What the president promises to do when he takes the oath, and what senators are assessing now, are really much more in the realm of political judgments.
Kornacki: We're all very familiar, obviously, with the basic case that Democrats have made against Trump. The idea that he, for a period, held up aid to Ukraine. That the purpose of holding up that aid was to try to get Ukraine to launch an investigation, or at least to announce launching an investigation into Joe Biden. The argument that that is a violation of the oath, where is the violation of the words in the oath there?
Rosenberg: Right. Well, it would be, arguably, that he didn't faithfully execute the laws of the United States, and that he didn't preserve, protect, and defend the Constitution. Again, it is not necessarily a crime that the House has to prove, or that the Senate has to judge.
It's conduct. Now, the conduct could be a criminal. But the founders were reasonably clear, at least when we think about what they were drawing on when they formulated our constitution and came up with the phrase, "high crimes or misdemeanors" to describe one way in which a president could be removed from office.
High crimes and misdemeanors didn't mean criminal conduct, per se. It meant public misconduct. And what you just described, Steve, what the president did with respect to Ukraine to try to get it to at least announce an investigation of a political opponent, I think clearly constitutes misconduct. Whether or not it's impeachable and whether or not he'll be removed, again, is a political judgment that the senators will make.
Kornacki: And there's a point that the president has made, in other contexts as well, specifically I think the Mueller report and the conversation around that, but it's also something that Democrats have referred back to during this impeachment drama. And that is the president talking about Article II of the Constitution giving him the breadth of power he has, basically allowing him to do just about anything.
Trump: Also, take a look at one other thing. It's a thing called Article II. Nobody ever mentions Article II. It gives me all of these rights, at a level that nobody has ever seen before. We don't even talk about Article II.
Kornacki: It's an argument the president has made. Those powers, those Article II powers. How do you interpret the limits on them, given what's in the Constitution?
Rosenberg: Article II does confer broad powers on the president, but certainly not unlimited. Let me just give you an example, Steve. No question that the president has the authority, in fact the constitutional authority to grand pardons. Or to nominate men and women to serve as federal judges or ambassadors.
But I don't think anyone believes that that power is unlimited. Meaning, for instance, if he wanted to make Steve Kornacki the United States ambassador to France, fine, have at it. That's great. But he couldn't do it in return for a $5 million cash payment.
That would be corrupt. And so whatever the contours are of a president's power under Article II of the Constitution, as commander in chief, or to exercise pardon authority, or to nominate men and women to the federal bench, it has to at least be constrained by the notion that you cannot act corruptly.
And it's also balanced by other powers that you find in the Constitution ascribed to other branches of government. And there's always a fight over that, by the way, between the legislative branch and the executive branch, often with the judicial branch, you know, trying to weigh in and determine the contours of that authority. But it is absolutely not unlimited.
Kornacki: For the record, I would decline the nomination to be ambassador to France. That's too much travel for me. I'd hold out for Canada, I think. I could probably handle that one. Let me follow up on that, though, but I think that you raise an interesting hypothetical there.
You're painting a scenario where, okay, five million bucks in cash, president gives out an appointment. Clear corruption there. But it does point to some pretty significant gray areas here, doesn't it? And I'm thinking of not five million bucks given to a president by an individual, but five million bucks given to the campaign, given to organizations supporting the campaign. That seems common when we talk about ambassadorial appointments, other appointments in government. It seems to be a gray area there.
Rosenberg: Well, look, I think you're right. I think all of this behavior that we're talking about is on a spectrum from purely innocent to purely corrupt. And the example that you've just drawn I think is a great one, Steve, because it shows you that it's not always easy to determine, you know, the difference between corrupt behavior, and behavior that we think of as unseemly, and behavior that's perfectly okay in the eyes of just about anybody.
Right? It's all on a spectrum. But, you know, the example I use, the $5 million cash payment to make you ambassador to France, even if you would turn it down, is clearly, clearly corrupt. And Article II cannot possibly be read, not by any sane person, to permit that.
You know, where it really comes into play, the Article II authorities of the president, and the contest with Congress over whether or not it's legitimate, is in the power as commander in chief. Right? To make war. To launch air strikes. To send in troops.
Hotly debated during World War II and the Korean War, the Supreme Court granting a lot of authority to Franklin Delano Roosevelt, with his Article II commander in chief hat on. But actually restricting Harry Truman in some important ways when he tried to exercise similar powers during the Korean War. So this is a longstanding debate. It will go on well beyond the presidency of Donald J. Trump.
Kornacki: We're gonna take a quick break, Chuck, but stick with us, because we're gotta be right back. (MUSIC) I want to talk, too, about how the idea of oaths has played out in other impeachments. We don't have many examples from the past, but we do have one.
We reference it here frequently, Bill Clinton, in 1998-1999. Back then with Bill Clinton, he was impeached. One of the charges, it was perjury. It was that he had lied to a federal grand jury about an extramarital affair with Monica Lewinsky. Henry Hyde, the judiciary committee chairman back then, Republican from Illinois, he made the case back then that Clinton had violated the oath that he took when he gave that testimony.
Henry Hyde: With the office of the president of the United States, the person fate of the president is not the issue. The political fate of his party is not the issue. The Dow Jones Industrial Average is not the issue. The issue is perjury. Lying under oath. That oath constituted a compact between the president and the American people. That compact has been broken. The people's trust has been betrayed.
Kornacki: It's interesting to look at how oaths were invoked back then, Chuck, and to remember that certainly in public opinion, and as it turned out in the Senate, that argument did not carry the day back then.
Rosenberg: No, it didn't. You know, sometimes where you stand depends on where you sit. And you're seeing some of the arguments advanced today by Republicans echo, eerily, arguments advanced back then by Democrats when Bill Clinton was president.
What's disappointing to me is that the president's conduct, President Trump's conduct, seems to be very much like what the Mueller team found with respect to Russian interference in our 2016 election. By that I mean an attempt by President Trump to get Ukraine to interfere in the 2020 election.
And that goes to the heart of a president's public conduct, or if you will, misconduct. I don't, in any way, condone what Clinton did. I thought his behavior was awful. And lying under oath is not something I would have tolerated as a federal prosecutor.
In fact, I prosecuted people for doing exactly that. But Clinton's misconduct didn't go to the heart of our electoral system. As bad as it was, again, I don't condone it in any way, it didn't go to the very fabric of our electoral system. And that's what's so dangerous about President Trump's behavior. Now, senators can decide whether or not that's impeachable. They ought to decide it in a fair and impartial way. That may just not be happening.
Kornacki: We mentioned Clinton. There's another parallel here, with where to news is right now, and where it was back during his impeachment. As Bill Clinton was impeached by the House in December 1998, he launched Operation Desert Fox, air strikes in Iraq.
Clinton: Their purpose is to protect the national interests of the United States, and indeed the interests of people throughout the Middle East and around the world.
Kornacki: Now, two decades later, we've got a pending Senate trial, and military action. The president authorizing military action, a drone strike that killed Qassem Soleimani, top Iranian general.
Trump: We took action last night to stop a war. We did not take action to start a war.
Kornacki: Plenty of Democrats out there right now saying the president had an obligation to consult Congress on this, that he couldn't and shouldn't but doing this unilaterally. You've got Republicans out there saying he had the right to do that. He's got the right, under the 2001 and 2002 military authorizations in the wake of 9/11 that Congress never pulled back, and therefore citing an imminent threat from a terrorist, he can authorize that. I'm curious what you make of it?
Rosenberg: Yeah. So this is that age-old debate. Under Article I of the Constitution, Congress has the authority to declare war. And also to appropriate money for the Department of Defense, for our armed services. Under Article II of the Constitution, the president is the commander in chief.
And when I referenced earlier, you know, what the Supreme Court did with respect to President Roosevelt in giving free reign, or largely free reign, and how the Supreme Court sort of restrained or reigned in President Truman, that goes to the very heart of this question.
In fact, when the framers were considering that power of Congress to declare war, one of the debates they had in the Constitutional Convention was whether Congress could make war, or declare war. And they settled on, "declare war," because I think in part they realized that it was the executive who had the ability to make war.
And that that I think more properly coincided with this commander in chief title that the framers gave the president. But this is an ongoing debate. And like I said earlier, it's gonna go on long after Donald Trump is out of office.
Kornacki: There's another element to all this, too, we talk about here as well. And that is how the public is processing all of this right now, their reaction to everything. There was a survey last year. Well, actually, it's two years ago now. I forgot that it's now 2020.
There was a 2018 survey from Georgetown University that looked at Americans and their trust in institutions. And it actually found there was pretty strong trust in a private company, in Amazon. But there was a very little trust when it came to the executive branch, when it came to the presidency, when it came to Congress.
For that matter, I probably should acknowledge there was also very little trust when it came to the media. I wonder, listening to you describe the oaths of office that you took, how solemn the occasion felt to you, how meaningful it felt to you, do you sense as the public watches all of this that there is a cynicism that has taken hold that affects the actions of our leaders?
Rosenberg: Yeah, I think that's a fair way to think about it, Steve. You know, I've always said skepticism is fine. In fact, skepticism is healthy. Cynicism, I think, is corrosive. And there seems to be a cynicism settling in. And it's really a shame, because those institutions that you just mentioned, right, the institutions of government and the media are among the most important institutions in the United States.
They've kept us safe. They've made sure that we have equal and civil rights. They've enforced the law. They conduct intelligence. They operate the courts. This are some of the most important things we do as a society. And for us to lose trust in those institutions, for that cynicism to sort of take hold, that's sad. And I think it may be deeply unfortunate, and I think it can be highly corrosive, and I worry about that.
Kornacki: (MUSIC) Chuck Rosenberg, you've made our first crossover episode here in the MSNBC podcasting world a success. Thank you so much for joining us.
Rosenberg: Oh, it's my pleasure. Thank you for having me, Steve.
Kornacki: Senate Majority Leader Mitch McConnell and Minority Leader Chuck Schumer both addressed impeachment on the Senate floor today. Senator McConnell argued that the structure of the Senate trial should follow the same format that was used for President Clinton's impeachment trial.
Mitch McConnell: Just like 20 years ago, we should address mid-trial questions such as witnesses after briefs, opening arguments, senator questions, and other relevant motions. Fair is fair.
Kornacki: And Senator Schumer responded.
Chuck Schumer: I just heard Leader McConnell speak for 30 minutes on the subject of the president's impeachment. There was a lot of finger pointing, name calling, and misreading of history. But not a single argument or discussion about the issue that's holding up a Senate trial: whether there will be witnesses and documents. Not one mention. He has no good argument against having witnesses and documents, so he resorts to these subterfuges.
Kornacki: So there doesn't seem to be much agreement there. We will see what happens when the full Senate is back in session on January 6th. But in the meantime if you want to know more about how the Senate trial might play out, check out this past Monday's episode of Article II from earlier this week.
Article II: Inside Impeachment is produced by Isabel Angel, Max Jacobs, Claire Tighe, Aaron Dalton, Preeti Varathan, Allison Bailey, Adam Noboa, and Barbara Raab. Our executive producer is Ellen Frankman. Steve Lickteig is the executive producer of audio. I'm Steve Kornacki, we'll be back on Monday.