The Oath of Office: Primum non nocere, First do no harm

Primum non nocere, First do no harm, is not part of the Hippocratic oath as many might think...

Perhaps it should be...

In my view, the admonition and promise to do no harm ought to be included in the text of every oath that every public official is required to be sworn.

Today, the 116th United States Congress will be sworn into office:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
— U.S. Constitution, Article VI, clause 3

The oath used today has not changed since 1966 and is prescribed in Title 5, Section 3331 of the United States Code. It reads: “I, AB, do solemnly swear (or affirm) 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 Duty of Loyalty. Public fiduciaries have an absolute obligation to put the public'sinterest before their own direct or indirect personal interests. Thepublic fiduciary breaches thisobligation when he or she benefits at the public expense.

The relationship between public officials and the public has been described by scholars as fiduciary in nature.  (See e.g. Rave, 2013; Leib, Ponet & Serota, 2013; Ponet & Lieb, 2011; Natelson, 2004)  So what is a fiduciary? Dictionary.com defines the term fiduciary as relating to, “a person to whom property or power is entrusted for the benefit of another.” There at least four factors that identify a relationship as a fiduciary one:

The beneficiary has delegated authority to the fiduciary to act on its behalf;

The fiduciary has discretionary powers over the beneficiary’s assets or interests;

The fiduciary is in a position superior to that of the beneficiary due to specialized access, knowledge or ability; and

The beneficiary trusts that the fiduciary will act in the beneficiary’s best interest. (Ponet & Leib, 2011.)

Examples of fiduciary relationships include those of the attorney/client, trustee/trust beneficiary, executor/heir, corporate director/shareholder, and principal/agent. You can see why the public official/citizen relationship is similar: The public delegates governing authority to public officials to exercise discretion over the public treasury and to create laws that will impact their lives.   The public official, once elected, appointed, or hired, is in a superior position to that of the individual citizen due to specialized governmental knowledge and the ability to advise, deliberate, and participate in the representative process.  And finally, the public trusts that the public official will act in the public’s best interest.

The concept that government officials have special ethical obligations to the public is actually quite old.  In Ancient Greece Plato called for death for public officials who took bribes. (Laws, 12.955d) In 1215 King John of England signed Magna Carta, which promised among other things, “To no one will we sell, to no one deny or delay right or justice.” (Magna Carta, cl. 40) In 1254 King Louis the IX of France promulgated conflicts of interest rules for provincial governors in the Grande Ordonnance Pour la Réforme du Royaume. (Davies, Leventhal, & Mullaney, 2013)

In 1776, our Declaration of Independence acknowledged the concept of delegated authority,

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." (emphasis added.  U.S., 1776)

According to U.S. constitutional historian Robert Natelson many delegates attending the constitutional convention of 1787 advocated for a fiduciary form of government, including James Madison and Alexander Hamilton.  Madison argued, for example, that senators ought to be guardians of justice and the general good, while Hamilton envisioned that members of the House of Representatives would be guardians of the “poorer orders.”  Natelson notes that the concepts of fiduciary government were also held by the states charged with ratifying the new convention. Maryland representatives literally declared themselves to be the trustees of the public. (Natelson, 2013)

Turning to present day government, what ethical duties flow from the public fiduciary relationship?  As noted by legal scholars David Ponet and Ethan Lieb, “Because fiduciaries are difficult to monitor and have wide access to power over beneficiary resources and assets, fiduciaries are under rigorous obligations that ensure compliance with their role responsibilities.” (Ponet & Leib, 2011) So, what are those obligations in the government context?

The duty of care;

The duty of loyalty;

The duty of impartiality;

The duty of accountability (Ponet & Leib, 2011; Natelson, 2004); and

The duty to preserve the public’s trust in government (Wechsler, 2013).

Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government (including members of Congress) to “advocate the overthrow of our constitutional form of government”. The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.

-----From various source materials in Wikipedia

Crimes are a subset of violations.  All crimes are violations but not all violations are crimes.

In any event and in every case public officials should be held to the highest possible standards of accountability...

Swearing to do no harm as an essential element of the oath of office raises the bar of accountability and responsibility.

In reading through the materials presented here, it should be abundantly clear that Trump was in violation of the oath of office even as he was being sworn in...

Rarely, if ever, have we been faced with the conundrum of an individual violating the oath of office while taking it...

Views: 56

Comment by Ron Powell on January 3, 2019 at 1:20am

I realize that this post is a bit long, even by my own standards.

Howeve, given the current political and governmental state of affairs, there is nothing here that a deeply concerned and we'll informed citizen shouldn't know..

Comment by Robert B. James on January 3, 2019 at 7:55am

Excellent and timely. I was waking up thinking about first do no harm myself. How long does it take one of these folks to stray? I’ve been the boots on the ground enforcing regulations...sticking to the letter gets one crushed quite quickly. 

      Like putting a target on your back...the day you step in the ring all your data gets collected and sold to the opposition. Having lived in this underwold of deception and violence...pushing a broom, as RP MacMurphy got that lobotomy, I’d answer that few of these folks decide to run before being corrupted , controlled or both. 

      Warren calls it a rigged game...who would know better? Menendez is still in office, Clinton almost got elected...these people are career criminals. I am optimistic nonetheless. The referees ...SCOTUS teeter. The playing field ...EARTH is not in good shape. The long play has low odds  for success, but that’s what makes a story worth telling. First do no harm...that will get you killed day one on the battlefield. When you get into the ring with remote controlled sociopaths you better be fucking prepared. 

Comment by koshersalaami on January 3, 2019 at 10:03am

When Trump was elected I said he’d be lying when he took the oath of office. 

Comment by Tom Cordle on January 3, 2019 at 11:00am

"The Duty of Loyalty. Public fiduciaries have an absolute obligation to put the public'sinterest before their own direct or indirect personal interests. Thepublic fiduciary breaches thisobligation when he or she benefits at the public expense."

And in those days, the Ignorant and Willfully Blind did clamor for a King, and one rose among them, a treacherous, odious, vile serpent who knew only the art of lining his pockets with silver and gold. And thus it came to pass, that he did surround himself with viziers and soothsayers who were of like mind, and they accrued unto themselves the wealth of the nation.

To my fellow Americans who cursed the rest of us with Trump, in doing so, you also cursed us with Price, Pruitt, Zinke, Munichin, Ross, et al – to you I say, go and sin no more ... educate yourself at least a little bit before voting ... and above all else, remember Ron's dictum – as a voter, first do no harm.

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