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Sen. Portman’s legalistic tangle fails to explain his vote to acquit Donald Trump: Thomas Suddes

No surprise, but still a disappointment: Sen. Rob Portman, a Terrace Park Republican, voted to acquit former President Donald Trump in his second Senate impeachment trial.

Here’s what Portman, who isn’t running for a third term, said:

”The question I must answer is not whether President Trump said and did things that were reckless and encouraged the mob [that invaded the Capitol]. I believe that happened. The threshold question I must answer is whether a former president can be convicted by the Senate in the context of an impeachment. …

”I believe the Constitution reserves the narrow tool of impeachment and conviction for removal of current officeholders and current presidents and does not apply to former officeholders or former presidents. Impeachment in the Constitution is fundamentally about removing someone from office.” (Note: “fundamentally” — not “only.”)

Portman graduated from a respected law school (Michigan). But what Portman said sounds like a dodge — a very carefully worded dodge, but a dodge, nevertheless. Refusing to convict Trump means he remains eligible to again become president.

First, the Senate has held a trial on impeachment of a former officeholder — ex-Secretary of War William Belknap, who’d been in President Ulysses S. Grant’s Cabinet. The House impeached Belknap; the Senate tried Belknap. That the Senate fell short of the necessary votes to convict Belknap doesn’t change the fact that Belknap was impeached and tried after he’d resigned.

Second, the nonpartisan Congressional Research Service said this on Jan. 15: “Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.”

Third, among the senators who declared, during Belknap’s trial, that a former federal official could be impeached by the House, then tried by the Senate, was Sen. John Sherman, a Lancaster Republican. Sherman served in the U.S. Senate for more than 30 years and also served at times as Treasury secretary and as secretary of state. (Lt. Gen. William Tecumseh Sherman, the Civil War commander, was his brother.) So: John Sherman was less conversant with constitutional law than Rob Portman?

Finally, there’s no doubt that the Founding Fathers knew that the British parliament did in fact impeach former officials, not just current officials. The Founders could have forbidden that — but didn’t. The natural counterpoint is they didn’t specifically authorize it, either. Perhaps they assumed their eventual successors would be as knowledgeable as they were. If so, today’s Congress would make them weep. (And seven Republicans in the U.S. Senate did vote to convict Donald Trump. Did they not consider any of the factors that led Portman to vote as he did — to acquit?)

Maybe grave constitutional scruple really is what kept Rob Portman from convicting Trump even if, in Portman’s words, Trump was “reckless and encouraged the mob.”

The question is, what would it take for Rob Portman to consider Donald Trump unfit for the presidency? Ohio is listening, senator.

Flakes and freedoms

“Snow Levels” — it’s the game every Ohio driver is forced to play this time of year. The Snow Levels hullaballoo gives AM radio stations, and Ohio’s 88 county sheriffs, the attention they crave. Every winter, flake by flake, Ohioans hear they’re facing the end of the civilization as they know it (which, agreed, may not be saying much).

Next time Ohioans are told they don’t have the common sense, let alone the liberty, to drive when it’s snowing, they might want to remind their elf-appointed nannies of a couple of things:

In 1908, Ohio issued its first license plate (for an air-cooled Franklin, owned by a Cincinnati lawyer). Only in 1986 did a legal opinion by then-Attorney General Anthony Celebrezze Jr., a Cleveland Democrat, clear the way for sheriffs to declare snow emergencies.

So: How, in the 78 years between 1908 and 1986, did Ohioans survive winter driving? They survived 1950′s Thanksgiving blizzard (when Ohio State and Michigan defied the storm by facing off in Ohio Stadium). And Ohioans survived the blizzard of 1978.

Snow isn’t exactly COVID-19. So, which is it: Ohioans have become wimps — or some public officials have become too big for their britches?

Thomas Suddes, a member of the editorial board, writes from Athens.

To reach Thomas Suddes: [email protected], 216-408-9474

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