Below is my column in the Cincinnati Enquirer in response to a column criticizing Senator Rob Portman for voting on the acquittal of former President Donald Trump in his second impeachment trial. Portman (who recently announced that he will not run for re-election) is one of the most thoughtful and decent figures in Congress. James Freeman Clarke once said: “A politician thinks about the next election; a next generation statesman. A politician seeks the success of his party; a statesman for that of his country. “I spoke to Senator Portman for years on constitutional and legal issues, and he always embodied what Clarke meant by a true statesman. His decision not to seek re-election was a blow to the Senate as someone desperate to work with the other party to find solutions to our growing national problems. Because of this, I felt like I had to reply to a recent column by opinion editor Kevin Aldridge. I have no doubt that, in good faith, Aldridge disagrees with the judgment. However, we need to reach a place where we disagree on such issues without questioning the other’s integrity or honesty. To that end, I would like to thank the Cincinnati Enquirer (and Mr. Aldridge) for the integrity of leading my column. This is the essence of dialogue and we may find that what divides us is nowhere near as great as what unites us as citizens.
Here is the column:
Bertrand Russell once warned that only fools “are always so sure” when “smarter people are so full of doubt”. Of course, certainty has its advantages. It can reduce the need to bring up arguments or even recognize that an argument is present. This is increasingly the case in our time of anger.
For example, Trump’s second impeachment trial raised a number of long-standing questions that have long been debated among academics, including the trial of former officials. Rather than accepting such narrow issues, many have argued that there are no real arguments for the constitutionality of such trials.
That certainty was expressed recently in an editorial by opinion editor Kevin Aldridge, in which he criticized Senator Rob Portman for acquitting Trump on the grounds that he believed that the Constitution governed the Senate trials on the recall of a seated and not a former president. Mr. Aldridge is certainly no fool, and I understand that his disagreement with the judgment is from the heart. However, he claims that “many” scholars deny that a past president cannot be tried. This is true. It is also true that many believe this is a narrow question and others believe that such processes are clearly unconstitutional.
For those of us who have resolved the question on both sides, most of us realize that it is a very narrow question. Indeed, over 20 years ago, I recognized the value of such attempts and the historical case for retroactive moves. I still believe that in the last few decades I have narrowed the question of jurisdiction. I agree with Portman that the better textual and political arguments oppose such attempts.
We are not alone. Among those making these arguments was Justice Joseph Story, whose famous comments are considered the gold standard for the constitution and the intentions of the authors. He wrote not long after his adoption and is one of the most widely cited authorities for such interpretations. He distinguished our impeachments from those in the UK in that the latter could indict former officials.
Story wrote, “If there is then to be an impeachment ruling, it seems to follow that the Constitution provided for the party to be in office at the time of impeachment. If it were not, his offense could still be tried and punished in the ordinary courts of justice. “
There were only two attempts at retrospective removal. The first came just a few years after the Constitution was adopted, when some of the signatories were in Congress. One of those signatories was William Blount, who was tried after he was expelled from the Senate. He didn’t even show up and the Senate dismissed the case without trial.
The second case was that of former Secretary of War William Belknap. In his case, nearly half of the Senate voted to dismiss the case as unconstitutional and only lost about five votes to dismiss the case. It then acquitted him.
Not much has changed since 1876. This remains an unsolved problem and the threshold vote in the Trump process failed with roughly the same five votes. He was then acquitted. It’s not about condemning the majority as shrewd partisans or clearly wrong. Portman, who held a position endorsed by academics, historical figures, and former senators, does not date back to the earliest days of the Republic either.
Aldridge also wrote that the arguments against the Trump trial were clearly wrong as he was indicted by the House before he left office. That is not true. The use of impeachment was unwise, but constitutional. You can go through a constitutional impeachment and an unconstitutional impeachment. It’s like saying that a court has to consider a case because a grand jury duly indicted a person. Courts can dismiss such cases because of constitutional or legal deficiencies. Likewise, the Senate’s power to examine a case is based on an independent standard and investigation. The Constitution says that the required vote is to remove “the President” from office. Only then can the Senate examine the discretionary penalty for exclusion from the future office.
Eventually, Aldridge criticized Portman for advocating the impeachment of former President Bill Clinton while opposing the condemnation of former President Donald Trump. I’ve seen 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 crime. Trump was not charged with any crime in his first impeachment, and in both impeachments, the record was insufficient to condemn the non-criminal articles. Additionally, the second impeachment process was the subject of not only regulatory concerns about “early impeachment,” but also constitutional concerns about retroactive removal. There is nothing hypocritical in Portman’s positions on the impeachments of Clinton and Trump.
In our time of anger, certainty is often eagerly accepted like a warm and protective blanket. It allows us to reject opposing views and even (as here) longstanding constitutional debates. It is not enough, however, to ask our leaders “to choose their conscience” but then to condemn them for having achieved an opposing position. We can all, in good faith, have differences of opinion on the underlying historical and constitutional issues. However, it is unfair to label others as partial or hypocritical simply because they have come to honest and reasoned conclusions that are different from your own.
Portman was one of the members who honestly debated the constitutional concerns about retroactive removal. I know because I’ve spoken to all of the GOP senators. He made his decision despite his condemnation of Trump’s speech. Like many others, he voted not out of loyalty to Trump, but to the constitution.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. He testified in both Clinton and Trump impeachments, and served as senior attorney in the latest Senate impeachment.