Our national government is in the midst of a political and moral crisis. Institutions are under attack by those who would destroy them from within.
President Trump and a significant number of his cabinet level appointees have been shown to engage in pervasive acts of self-dealing and other questionable conduct for which existing laws appear to be inadequate to hold them to account. None of that misconduct is inadvertent, and it must be stopped.
Service members who betray their oath can be prosecuted, but civilians face no such threat of criminal prosecution.
Last week, I urged my congressman, U.S. Rep. John Garamendi, to introduce legislation updating the official Oath of Office statute, Title 5, United States Code, section 3331, by enacting strong enforcement teeth.
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The statute requires those it covers to swear that they will “support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same…and that I will well and faithfully discharge the duties of the office on which I am about to enter.”
Military officers have been required to swear some version of it since 1789; it was broadened and strengthened to include elected and appointed government officials during the Civil War.
Service members’ obligations are enforced by military discipline as well as esprit de corps and military culture. They can be prosecuted for such offenses as dereliction of duty, culpable negligence, and behavior tending to bring the service into disrepute.
But while elected and appointed officials can be voted out or fired for cause, civilians face no such threat of criminal prosecution. Some, in fact, may view both the oath and the Constitution it defends as political abstractions.
Such abstractions can command less loyalty and feel less compelling than, say, a person, such as a king. This may partly explain why, under President Donald Trump, hyperbolic partisanship has become a feature of government service.
But an us-versus-them dichotomy can become the basis for disloyalty and treason. Following the outbreak of the Civil War, nearly one-third of our West Point-trained army officers chose to fight for the Confederacy.
That is the danger we face by putting party over country. In the House of Representatives today, a sizable contingent of President Trump’s supporters are determinedly opposed to the ongoing investigation into the President’s 2016 election campaign, and willfully blind to signs the President and his campaign were complicit in Russia’s intervention into that election. Every one of them swore an oath to the Constitution in accordance with the statute, but their behavior implies that partisan power is the real priority.
Until very recently, the Constitution’s allocation of powers and duties was well understood and respected. But President Trump’s emphasis on personal loyalty to himself, and the disturbing and egregious ethical lapses demonstrated by his numerous appointees, clearly require new rules.
Strong criminal penalties will restore the rule of law and normative behavior and accountability. Loyalty to our country and its Constitution must come before anything else.
Arthur R. Silen is a retired attorney in Davis and a former member of the U.S. Court of Appeals for the First Circuit appointive panel in Boston. Reach him at firstname.lastname@example.org.