Portman’s Principled Stand: A Response To The Cincinnati Enquirer

Below is my column in the Cincinnati Enquirer in response to a column criticizing Sen. Rob Portman for his vote to acquit former President Donald Trump in his second impeachment trial. Portman (who recently announced that he will not run for reelection) is one of the most thoughtful and decent figures in Congress. James Freeman Clarke once said “A politician thinks of the next election; a statesman of the next generation. A politician looks for the success of his party; a statesman for that of his country.” I have spoken with Sen. Portman on constitutional and legal issues for years and he always epitomized what Clarke meant about a true statesman.  His decision not to seek reelection was a blow for the Senate as someone who was eager to work with the other party on finding solutions to our growing national problems. That is why I felt I had to respond to a recent column by Opinion Editor Kevin Aldridge. I have no doubt about Aldridge’s good-faith disagreement with the verdict. However, we need to reach a place where we can disagree on such issues without questioning each other’s integrity or honesty. To that end, I want to thank the Cincinnati Enquirer (and Mr. Aldridge) for having the integrity of running my column.  This is the essence of dialogue and we may find that what divides us is not nearly as great as what unites us as citizens.

 

Here is the column:

 

Bertrand Russell once warned that only fools “are always so certain” when “wiser people (are) so full of doubts.” Of course, certainty has its advantages. It can cut off the need to address arguments or even recognize that any argument exists. That is increasingly the case in our age of rage.

For example, the second Trump impeachment trial raised a host of long-standing questions that have long been debated among academics, including the trial of former officials. Rather than recognize such close questions, many have claimed that there are no real arguments about the constitutionality of such trials.

That certainty was expressed recently in an editorial by Opinion Editor Kevin Aldridge criticizing Sen. Rob Portman for voting to acquit Trump based on his view that the Constitution limits Senate trials to the removal of a sitting, not a former, president. Mr. Aldridge is certainly no fool and I understand his disagreement with the verdict is heartfelt. However, he claims that “many” scholars dispute that a former president cannot be tried. That is true. It is also true that many believe that this is a close question and others believe that such trials are clearly unconstitutional.

For those of us who have resolved the question on either side, most of us recognize it is a very close question. Indeed, over 20 years ago, I recognized the value of such trials and the historical arguments in favor retroactive removals. I still believe that but, over the last couple decades, I have come to view the jurisdictional question more narrowly. I hold the same view as Portman that the better textual and policy arguments disfavor such trials.

We are not alone. Among those making these arguments was Justice Joseph Story whose famous commentaries are treated as the gold standard on the Constitution and the intention of the Framers. He wrote not long after its adoption and is one of the most cited authorities on such interpretations. He distinguished our impeachments from those in Great Britain on the basis that the latter could impeach former officials.

Story wrote, “If then there must be a judgment of removal from office, it would seem to follow that the Constitution contemplated that the party was still in office at the time of the impeachment. If he was not, his offense was still liable to be tried and punished in the ordinary tribunals of justice.”

There were only two attempts at a retroactive removal. The first occurred only a few years after the adoption of the Constitution when some of the signers were in Congress. One of those signers was William Blount who was tried after being expelled from the Senate. He did not even show up and the Senate dismissed the case without a trial.

The second case was that of former Secretary of War William Belknap. In his case, almost half of the Senate voted to dismiss the case as unconstitutional and lost by only around five votes to dismiss the case. It then acquitted him.

Not much has changed since 1876. This remains an unresolved issue and the threshold vote in the Trump trial failed by roughly the same five votes. He was then acquitted. The point is not to denounce those in the majority as craven partisans or clearly wrong. Neither is Portman who followed a position supported by academics, historical figures, and prior senators going back to the earliest days of the republic.

Aldridge also wrote that the arguments against the Trump trial were clearly wrong since he was impeached by the House before leaving office. That is not true. The use of snap impeachment was unwise but constitutional. You can have a constitutional impeachment and an unconstitutional impeachment trial. It is like saying that a court must try a case because a grand jury properly indicted an individual. Courts can dismiss such cases on constitutional or legal flaws. Likewise, the Senate’s authority to try a case is based on an independent standard and inquiry. The Constitution says that the required vote is to remove “the President” from office. Only then can the Senate consider the discretionary penalty of disqualification from future office.

Finally, Aldridge criticized Portman for favoring the impeachment of former President Bill Clinton while opposing conviction of former President Donald Trump. I have faced the same baseless criticism. I testified in favor of Clinton’s impeachment because even Democrats (and later a federal judge) agreed that Clinton committed perjury in office, a felony crime. Trump was not accused of a crime in his first impeachment and in both impeachments the record was insufficient to convict on the non-criminal articles. Moreover, in the second impeachment, the trial itself was subject not only to prudential concerns over a “snap impeachment” but constitutional concerns over a retroactive removal. There is nothing hypocritical in Portman’s positions on the Clinton and Trump impeachments.

In our age of rage, certainty is often eagerly embraced like a warm and protective blanket. It allows us to dismiss opposing views and even (as here) long-standing constitutional debates. Yet, it is not enough to call for our leaders to “vote their conscience,” but then condemn them for reaching an opposing position. We can all have good-faith disagreements on the underlying historical and constitutional questions. However, it is unfair label others as partisan or hypocritical merely because they reached honest and reasoned conclusions different from your own.

Portman was one of the members who honestly debated the constitutional concerns over a retroactive removal. I know because I spoke to all of the GOP senators. He reached his decision despite his condemnation of Trump’s speech. Like many, he voted not out of fealty to Trump but to the Constitution.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified at both the Clinton and Trump impeachments and served as lead counsel in the last judicial impeachment trial in the Senate.

Source: Jonathan Turley

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