Commentary: Is Portman's 'Open Mind' On Impeachment Really Open?

Dec 11, 2019

Let's say you have been called to jury duty in your county courthouse and you dutifully attend each day until you are assigned to a jury pool in a criminal case.

This is your chance to be a juror. You go through a process called voir dire, during which lawyers for the defense and the prosecution – both trying to put together a jury sympathetic to their sides – ask you a series of questions.

If either side doesn’t like what it hears from you, it can reject you as a juror, with no explanation necessary.

How do you get rejected? Well, you could say something along these lines:

Yes, if I am a juror, I will be attentive to the testimony and keep an open mind on what I heard. But, I can tell you this, I am planning to vote that the defendant is NOT GUILTY.

I can guarantee you that the prosecuting attorney will run you out of that courtroom on a rail instantly.

No way that prosecutor is not going to send you packing, because the last thing he or she needs on a jury is a juror who has already said publicly – and under oath – that he or she will render a not guilty verdict.

Well, when the United States Senate holds a trial on impeachment charges – which are the functional equivalent of indictments – there is no such thing as voir dire.

Maybe there should be, given the number of U.S. Senators who have already made up their minds without hearing one argument in Senate trial – Democrats for conviction, Republicans for acquittal.

In fact, most U.S. Senators couldn’t get picked for the jury trial of a guy charged with stealing a six-pack of Milwaukee's Best from a convenience store.

It is increasingly likely that, soon, there will be a trial in the Senate on two charges – abuse of power and obstruction of Congress. Both impeachable offenses.

And if you are a senator who has been bloviating on cable news shows or otherwise blowing blue smoke about the likely-to-be upcoming Senate impeachment trial, you can say just about anything you want. Some may say things eminently sensible; others will say things so stupid it makes them look like they do not have the sense God gave a goat.

It doesn't matter.

There is no shutting up a U.S. Senator.

If you are a Republican U.S. Senator and you have the typical hear-no-evil, see-no-evil, speak-no-evil attitude toward being one of the tryers of fact in the impeachment of Donald J. Trump, you almost certainly will end up voting to acquit.

Impeachment, you see, resembles a criminal trial in some ways, but not in all ways.

It is, rather, more like a three-ring circus with 100 "jurors" in the jury box – the Senate floor, in this case.

Many of them could have a hard time focusing in on what is being said by the House Democrats who will present the case to the Senators – mainly because these honorable solons – who, in theory, represent the branch of Congress that is more thoughtful and contemplative because they have to run every six years instead of every two.

It's likely that many of those high-brow, legislative thinkers will be too busy contemplating the impact of a guilty verdict or an acquittal on their re-election chances to consider the evidence.

Typical of the U.S. Senators who appear to be in some turmoil over this decision is Ohio's own junior senator, Rob Portman, a Republican from Terrace Park. When it comes to Ohio's senior senator, Democrat Sherrod Brown, you can pretty much book it – Guilty, guilty, guilty.

Last month, Portman went out of his way to tell reporters that he would keep an open mind during a Senate trial of Trump.

OK, open mind. An open mind is always a good thing. Except when it's not.

"As I've said consistently, based on what I have seen thus far, I haven't seen anything that rises to the level of being impeachable,'' Portman told WKSU last month. "Meaning that you would reverse the results of the election when we are right up on another election.

"But I've also said, based on what I have seen thus far; and I am listening. I'm a juror."

Then, last week, after a tour of the Eastland Career Center in Groveport, Portman doubled-down on his I'm-Open-Minded-About-Trump-Being-Not-Guilty argument.

He was mildly critical of Trump on the main issue being used against him – that he tried to pressure the Ukrainian government into investigating the business affairs of the son of Democratic presidential candidate Joe Biden. The threat? The U.S. would hold back military aid to the Ukraine if it didn't play along with Trump.

"I don't think everything was appropriate, particularly asking for a foreign government to look into a political opponent, but I don't believe it rises to the level of saying, 'we’re going to reverse the results of an election,' which is what impeachment is,'' Portman said.

But, Portman insisted, he will listen carefully to the argument that the House Democrats make against Trump.

It does make you wonder what a senator like Portman is worried about.

He doesn't run for re-election until 2022, and Trump may be back at Mar-A-Lago, employing the foot wedge on the golf course by then.

Trump and Portman were both on the ballot in Ohio in 2016. Trump won over Hillary Clinton with 51% of the vote. Portman was re-elected to the Senate with 58%.

You could make the argument that he is already more popular with Buckeye voters than Trump.

You could also make the argument that Senate candidates like Portman can't afford to turn off the corps of fervent Trump supporters, the majority of whom are middle-aged white males wearing foam rubber MAGA caps.

Portman has also always prided himself on his appeal to cross-over voters – Democrats and independents who have supported him in the past.

If he votes to let Trump off the hook, they may look at him with less friendly eyes – especially those suburban women, who have been abandoning a Republican Party they see as having been hijacked by Trump.

Portman is not the only one feeling the heat of impeachment – so too are a lot of his colleagues on both sides of the aisle. There are many Democrats who would just as soon have skipped this impeachment process and banked on throwing out Trump in next year's election.

Do the math. Conviction in the Senate would require a 67-vote super majority of the 100-member Senate.

There are 45 Democrats and two independents in the Senate. If all of them voted for impeachment (highly unlikely), that would be 47.

They would need to pick up the votes of 20 open-minded Republicans.

And what are the chances of that?

About as good as me being the starting left-fielder for the Reds on Opening Day.

Credit Jim Nolan / WVXU

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