As Chief Justice Roberts botched the presidential oath of office, I had a momentary fear that he would lead President Obama into an unforeseen chasm of constitutional error, immediately disqualifying him from office because of some ancient, masonic honor code . . . .

Really, though, it does appear that, although he becomes the President at noon on January 20th, the oath must be taken before the President may “execute” the office:

Before he enter on the Execution of his Office he shall take the following Oath or Affirmation:—”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.”¹

Can you really say “before he enter on…”? Whatever. Anyway, for those keeping score:
Roberts’ errors:
(1) called Obama “Senator”
(2) said “execute . . . faithfully” rather than “faithfully execute”;
(3) said “President to the United States”
(4) said “so help you God?”—which is just, like, bad form or something.

Obama’s errors:
(1) repeated “execute . . . faithfully”
(2) said he was the 44th person to take the oath. Actually, he’s just the 43rd. Grover Cleveland counts twice because his two terms were non-consecutive.

1. U.S. Const. Art. II, § 2. [↩]

President-Elect Obama has commented on the possibility of further investigations of the Bush administration regarding such matters as detainee treatment and the role of political advisers in firing federal prosecutors:

“If crimes have been committed, they should be investigated,” Mr. Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”¹

President Bush might claim executive privilege, even after his term is over, to refuse disclosure of evidence or testimony by top officials.

Mr. Bush might rely on an informal precedent set by President Truman, when he refused to testify before HUAC after leaving office in 1953. Truman sent a letter to the House committee claiming residual constitutional privileges derived from separation of powers. HUAC backed down, and the informal precedent was set.

I’m not in favor of the new administration pushing this. I am in favor of the rule of law, and of course I do not think the President is above the law. But it is far more important to take on the current and future problems facing the country than to seek vindication for past wrongs.

If the new administration sees evidence of wrongdoing by the old, it should publicize it and condemn it. And it should comply with the law in cooperating with any ongoing congressional investigations. Most importantly, the new administration should repair the damage and work to prevent it from ever happening again. But it should not risk alienating a third of the country which might perceive prosecutions as partisan retribution.

While it is understandable to desire that a past administration be held accountable for its wrongdoing, I think it is far more important that the American people hold themselves accountable for their choices in the voting booth. Elections have consequences. Only the political process can right the wrongs which the political process has wrought.

1. New York Times, Nov. 13, 2008, http://www.nytimes.com/2008/11/13/washington/13inquire.html. [↩]

Tuesday’s election of Barack Obama was one of those rare events which become “historic” before they’re even part of what we call “the past.” On January 20, 2009, Obama will become the 44th President of the United States.¹ I dare say some will be calling him the greatest president in American history by January 19th.

I’m planning a few entries about Obama’s election, with some historical perspective. But here’s a question that I’m really starting to wonder about: what will be the great constitutional questions of the Obama presidency?

George W. Bush’s tenure has raised issues of executive privilege, war powers, detainee rights, the unitary executive, and wartime civil liberties–to mention a few. Obama, himself a teacher of constitutional law, will obviously take a very different route than Bush on these questions. But what are the big constitutional debates, if any, which await us in the next four to eight years?

1. Actually, he will be the 43rd person to hold the office. Grover Cleveland counts twice because his two terms were not successive. [↩]