Anonymous Op-Ed Is Not The Path To Travel

5 U.S. Code § 3331 - Oath of Office

“I, Clifford James Moore, do solemnly swear that I 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; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

During my 35-year career as a federal employee, I took the above oath of office on at least a dozen occasions as I moved through the legislative and executive branches of government. Several times as a Congressional employee (House and Senate), as political appointee under two presidents (Ronald Reagan and George H.W. Bush), and as a career federal employee in one agency (Action, the federal volunteer agency) and four cabinet departments (Transportation, Education--where I served under two Secretaries—Defense, and Veterans Affairs—where I served under four Secretaries).

Every time I took the oath, whether it was in some small administrative office off a basement corridor in a 1930s-era bland brown building in downtown Washington, or just steps away from the gleaming U.S. Capitol, something deep down caused me to stand a bit taller, to focus keenly on the oath being administered, and to speak those words with a strong and affirming voice. No matter the venue, the words never changed, the object of the oath never changed: “I will support and defend the Constitution of the United States.” It was never “I will support and defend the House of Representatives, or the Senate, or the Department of Defense, or the Department of Veterans Affairs.” Always it was, and remains, “The Constitution of the United States.”

The person, or persons, who wrote the anonymous “Resistance” op-ed that appeared in the New York Times on Wednesday, September 5, also took that same oath. He or she (or they), did not swear (or affirm) allegiance to Donald J. Trump, or to the White House, or to the Executive Branch. They swore to support and defend the Constitution of the United States. I cannot say that enough. Their loyalty, to my way of thinking, was to the founding first-principles document that enumerates and vouchsafes every law under which our country operates, and all the liberties and rights therein. It cannot be made more clear. That is what the oath is all about.

When I read the op-ed, my first inclination, to be honest, was “Good for you! It’s about time we heard from a senior insider who sees through the fog and smokescreens of the ongoing bizzaro-war within the walls of the White House, and who is taking up arms, manning the barricade, and making a noble stand. Vive la Anonymous!”

But, after sleeping on the story, and re-reading the op-ed several times in the light of a new day, I began to doubt, question, and, finally, reverse my initial fist-pump rationale. The op-ed is not a commentary about what’s wrong at the White House. It is about the author’s (s’) loss of faith in the bigger picture of national service, and the writer’s (s’) unwillingness to let the Constitutional system of separation of powers do what it is supposed to do.

I get why the author(s) feel like that. Twice during my federal career—once on the Hill, once in the executive branch, at VA—I ran into leaders whose operating principles so differed from my vision of what they were either elected or appointed to do, I submitted my resignations and walked away. In one instance, I simply left the Representative for whom I was working and accepted a new job in the Senate. In the other instance, I resigned from the civil service five years earlier than I’d planned, and, once back in civilian life, began writing signed editorials and blogs that reflected my concerns for the department and leadership I’d left behind.

Now, it would be folly for me to suggest that my home-based editorial contribution to the larger national dialogue about my former department and its secretary moved the needle of importance in any meaningful way. But those editorials had what the New York Times op-ed did not: my name, my accountability, my ownership of each and every word. My decision to put my name on the columns I wrote was made with the Constitution and my oath in mind; I could not shoot at my boss or the department from behind bushes of anonymity while I was in service to the Constitution, and, thereby, to the country. But I could exercise my First Amendment right to speak freely about my concerns once I was no longer bound by my Constitutional oath.

There is the argument that what the “Resistance” author(s) are up against is of far greater import and immediate danger than my microscopic problem at one federal agency. After all, there can be no question among reasonable people that president Trump’s White House is, in fact, “off the rails,” and careening toward a real and present danger of Constitutional, if not existential proportions. I understand that. And I understand how a person, or perhaps a network of people, who genuinely fears for the country’s stability, safety, and security at home and abroad, would find irresistible the temptation to try to either fix what is becoming more broken every day, or at least memorialize in an op-ed the spreading miasma of events in the hopes that the American people and their elected representatives in the legislative branch would rise to a call to action.

The problem is, our system does not work that way, and it was never intended to. A thorough reading of Article II of the Constitution and all of the Federalist Papers will not uncover any permission for a federal employee—no matter how highly ranked (save the Vice President)—to assume the role of president-in-parallel.

The oath any president takes is not the same as the oath civil servants take:

"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,(so help me God)”

vs. 

“I do solemnly swear that I 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; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The Presidential Oath is spelled out in the Constitution in Article II, Section One, Clause 8. That clause, and that clause alone, contains the words, “…faithfully execute the Office of President of the United States…” Those words—Office of the President—don’t appear in the civil servant’s oath; the oath-bound duty of a civil servant is to “…bear true faith and allegiance to the same [the Constitution], and it is to that allegiance the writer or writers of the Anonymous Op-Ed must turn.

You can argue that the phrase, “I will well and faithfully discharge the duties of the office on which I am about to enter,” as a sort of catch-all phrase that might give a sincerely worried civil servant the idea that he or she has tacit permission to go to extreme measures to fulfill their executive branch duties. That would be a mistake, and it is the mistake made by the Anonymous op-ed author(s). The civil servants’ oath does not confer any extraordinary powers above and beyond their stated duties. It does not give permission to act, even in extremis, in some sort of sub rosa presidential channel.

When the Op-Ed says, “I work for the president, but like-minded colleagues and I have vowed to thwart parts of his agenda and his worst inclinations,” the writer is placing their cherry-picked “vow” of immediacy above their original Constitutional oath. This is not permissible in a nation of laws executed by men and women whose voluntary oaths bend their public actions toward, not away from, the Constitution they are sworn to uphold. In short, civil servants cannot serve two masters—or, in this case, two oaths--simultaneously. It is not, as president Trump barks, in all caps, “TREASON?,” but it is at the very least, unethical to play two sides of the Constitution—an anonymous application of the First Amendment leveraged against a subversion of a Constitutional oath—at the same time.

So what are the remedies available to writers like Anonymous who, in their judgement, perceive threats to national security, public safety, or sound policy development being ignored or subverted by a president they believe is irrational at worst, or simply incapable of sound management of the office of the president? 

If the writer is truly a senior administration official, he or she must first memorialize the president’s transgressions by taking contemporaneous notes, supported by evidence or by being able to point to evidence (and not by removing or withholding evidence); as the evidence accumulates, the official has an obligation as part of the duties of his or her office, to bring their concerns to the attention of superiors, or, if none can be trusted, to legal government counsel (an inspector general, for example, if not White House counsel); and, finally, if the senior official truly feels he or she has run out of options within the White House (or within their department), and they continue to believe the country is being led toward a crisis, they must resign their office and then, and only then, write their op-ed and sign it.

My opinion is informed by my own special lodestar, Sir Thomas More, whose refusal to obey what he believed to be an unlawful and immoral order—to swear, in writing, his allegiance to Henry VIII as head of the church of England—lead to his beheading in 1535. More had been given many opportunities to express his views on the righteousness of Henry’s various schemes to outwit the Catholic church’s edicts against Henry’s marriage to Anne Boleyn. In every case, More, while willing to accept Anne’s legitimacy, and having no problem as an English citizen in pledging loyalty to the Crown, could not extend that oath to acknowledging Henry as the head of a church-of-moral-convenience. In the end, it was what More would not sign that did him in.

In a stirringly dramatized scene in the 1966 movie, A Man For All Seasons, More, played by Paul Scofield, admonishes William Roper for Roper’s advice that the traitorous Richard Rich be arrested. More, the target of Rich’s treachery, does not agree that Rich’s arrest would be lawful, even though More knows full well that Rich is working against him. Roper, furious, accuses More of being too righteous to act against Rich, and in this particular scene in the movie, More makes clear his unyielding affection for the law of the land:

WILLIAM ROPER: So, now you give the Devil the benefit of law!

SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?

ROPER: I’d cut down every law in England to do that! 

MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

The author or authors of the New York Times op-ed have, in my opinion, an obligation to resign from their Constitutionally-pledged office and, if they have the moral and ethical courage, acknowledge their written work. There is no shame in being a dissenter, and, as I learned from my own act of resignation five years ago, there is a certain moral power that fills the void left behind.

It is likely that there is still more of the Devil in the White House than any one man or woman—or network of men and women—can battle behind the scenes. It is also likely that one, two, or even a dozen resignations, will not dissuade Trump from his determined path toward social and political chaos. 

Should the system come crashing down, should all norms crumble, should the nation be catapulted into a crisis deeper than we can currently imagine, I believe the Constitution will hold fast to the center and that the lawful process of corrections—the application of the ballot box against tyranny—must be allowed to play out.