Biden administration officials took oaths of office, despite post's claim | Fact check

Sudiksha Kochi, USA TODAY
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The claim: Many federal officials are working 'without swearing an allegiance to the Constitution'

A May 14 Instagram video (direct link, archive link) shows various images of President Joe Biden and his inauguration ceremony, former President Donald Trump's inaugural address and internet searches of military cannons.

"Do we have public servants in office who are acting as elected officials without swearing an allegiance to the Constitution?" the narrator says. "A writ of quo warranto has been filed in the U.S. attorney's office in Washington, D.C., stating that numerous oaths of office cannot be found on file for many of our federal public officials, including Vice President Kamala Harris and Secretary of Defense Lloyd Austin."

The video received over 8,000 likes in less than two weeks. A tweet with a similar claim was liked 900 times in less than two months.

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Our rating: False

The officials listed in the video, most of whom were appointed by Biden, took oaths of office and swore allegiance to the Constitution, according to video clips and agency statements. Legal experts said a court document cited in the post is not evidence otherwise.

Biden administration officials took oaths of office

Of the 10 officials mentioned in the video, only Harris was elected by voters in the 2020 elections.

The other nine officials were chosen by Biden. They are:

  • Austin

  • CDC Director Rochelle Walensky

  • Treasury Secretary Janet Yellen

  • Energy Secretary Jennifer Granholm

  • FDA Principal Deputy Commissioner Janet Woodcock

  • Health and Human Services Secretary Xavier Becerra

  • Transportation Secretary Pete Buttigieg

  • Secretary of State Antony Blinken

  • Homeland Security Secretary Alejandro Mayorkas

Contrary to the post’s claim, all the listed officials took oaths of office, as required by federal statute 5 U.S. Code, Section 3331 during their official swearing-in ceremony. The oath includes a statement that the official "will support and defend the Constitution of the United States against all enemies, foreign and domestic."

Harris took the oath when she was sworn in Jan. 20, 2021, by Supreme Court Justice Sonia Sotomayor, as shown in a C-SPAN clip. Likewise, video clips show Yellen, Granholm, Becerra, Buttigeg, Blinken and Mayorkas also took oaths of office when they were sworn in by Harris.

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Austin was sworn in administratively at the Pentagon on Jan. 22, 2021, and ceremonially sworn in at the White House on Jan. 25, 2021. The Defense Department, which declined to provide a name for attribution, told USA TODAY Austin took the oath of office.

Likewise, all Health and Human Service Department employees, including Walensky and Woodcock, took the oath of office, according to the department, which also declined to provide a name for attribution.

Experts say federal statute cited in petition is not evidence of claim

As evidence for the claim, the post references a court document labeled “petition for writ of quo warranto” filed with the U.S. Attorney's Office in Washington D.C. by a person named Lisa McGee.

The petition cites 5 U.S. Code, Section 3332, which says officials shall file – along with their oath of office – an affidavit within 30 days of their effective date of appointment that says “neither he nor anyone acting in his behalf has given, transferred, promised, or paid any consideration for or in the expectation or hope of receiving assistance in securing the appointment.”

The petition claims requests for such affidavits made to several Biden officials have either not received a timely response or received a defective response, and it asks to have those officials removed from office.

But legal experts say the federal statute in question plays no role in an official's appointment or election to office.

"By its terms, it does not create a condition for taking or continuing to hold office," Evan Bernick, a constitutional law expert at Northern Illinois University, told USA TODAY in an email. "The appointment is 'effective' regardless of whether they file the affidavit. The form of the oath is specified by 5 U.S. Code § 3331."

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Vincent Bonventre, a law professor at Albany Law School, agreed and noted that nothing in the Constitution or the statute suggests these officials did not swear allegiance to the Constitution simply because this group can't access the oath affidavits.

“Typically, all government employees complete and sign a written affidavit containing the oath, which is then placed in the personnel file,” Bonventre said. “However, nothing in the Constitution − except for Article II dealing with the president − indicates any particular procedure or format or requirement other than that some unspecified oath upholding the Constitution be taken.”

The claim that the remedy for violating the statute is removal from office has been considered and rejected before during the Whitewater investigation, which was about a failed real estate deal involving Hillary Clinton and former President Bill Clinton, according to Bernick.

In that case, the court considered and rejected an argument that Kenneth Star, the independent counsel leading the investigation, lacked the authority to prosecute because he hadn't complied with Section 3332, Bernick said.

USA TODAY reached out to the lawyers representing McGee and the social media users who shared the claim for comment but did not immediately receive a response.

Factcheck.org also debunked the claim.

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This article originally appeared on USA TODAY: Biden officials did take oaths of office, despite claim | Fact check