OPINION

David Pepper | Opinion contributor

As our Founding Fathers mandated, when the impeachment trial began 10 days ago, U.S. senators took an oath to "do impartial justice" as jurors at that trial.

And as James Madison wrote in Federalist 10, a key principle of impartiality is that “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” Black letter law applies this principle not just to parties, but to anyone who has a direct interest in a case.

Ohio’s Senator Rob Portman has such an interest.

Even voting on the rules of the trial, as he did last week, constituted an egregious conflict of interest. Voting to further block witnesses and evidence this week would only double down on the problem, and voting on the ultimate outcome would taint both our senator and the overall trial for the history books.

So how does Portman have an interest?

Like others, he made initial statements suggesting he had already made up his mind on key facts. But that’s just the beginning. Unlike others, his involvement runs far deeper than that.

Until several months ago, Portman proudly touted that he founded and chairs the Senate’s Ukraine Caucus. The senator has been an active participant in Ukraine policy for years – calling for the same anti-corruption steps as Vice President Joe Biden did in a 2016 letter, pressing for U.S. aid, and meeting with all the key players in 2019, including President Zelensky and former Ambassadors Yonavovich and Volker. And we learned only last week that in August 2019, his office even requested to know why Ukraine aid had been held up. In short, he had a front row seat as developments unfolded there.

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But then his entanglement got even more direct, placing him center stage at a pivotal moment of the factual sequence that led to impeachment.

AP

On Sept. 12, Portman tweeted that he had called Trump the evening before to ask that the Ukraine aid be released, and that he appreciated the President doing so. He also suggested that Trump had held up the aid because European countries had not been providing sufficient help, a position Portman said he "strongly support[ed]." Weeks later, on the same day that the call summary with Ukraine’s president was making news, Portman proactively elaborated on this story through a blitz of interviews on Fox News and Fox Business News, as well as through numerous media outlets in Ohio.

Trump later amplified Portman’s account, claiming publicly that "I gave the money because Rob Portman and others called me and asked." He, too, cited the lack of European "support" as his excuse for the hold up. And he explicitly touted Portman’s statements to boost this narrative – "Rob Portman backed me up…and there’s nobody more honorable than Rob Portman of Ohio."

This Portman intervention has become such an important part of the Trump factual narrative that it was referenced in the White House’s Impeachment Brief, filed in the Senate. In that account, Chief of Staff Mulvaney and Vice President Pence were also part of Portman’s conversation. The Europe "burden-sharing" argument was also part of the Trump defense team’s opening argument to the Senate.

But here’s the problem: the account appears to have been a simplistic cover story hiding the real reason the money was held up – Trump’s shakedown of Ukraine to get his desired political investigations – and later released.

Documents and corroborating House testimony now make clear that the lack of European support was not only not the reason for the hold-up, but that Trump’s statements about European support were false. As fact checkers quickly pointed out, Europe has supported Ukraine generously, far more than the United States, and one would assume the chair of the Ukraine Caucus would know that.

But even more importantly, the claim that the call from Portman is what pried the money loose is also highly misleading. The tale was far messier than that. A flood of released documents has revealed the tense back and forth between US officials in Ukraine, OMB, the State Department, the Department of Defense, and other administration officials about the illegality of withholding aid authorized by Congress. With questions mounting about Trump flouting the law, the specter of a quid pro quo, an impending fiscal deadline, and the concern that the whistleblower complaint was about to go public, enormous pressure built on the White House in August and early September to release the funds. Testimony and documents show that it was only at this time that the White House started formulating its "Europe burden sharing" excuse to cover for its actions, inquiring only then into data about how much European nations support Ukraine.

Finally, on Sept. 11, the dam burst. Congress was notified early in the day that the aid was being released.

All of which sheds damning light on the coordinated narrative that, despite urgent calls from so many others, it was a uniquely persuasive phone call from Senator Portman on the evening of Sept. 11 that convinced Trump to release the funds. To put it bluntly, we now know that was a highly misleading cover story – debunked by the documents that have come out since, and inconsistent with the actual sequence of events (the call occurred after notification to Congress).

It’s important to remember the timing of all this – because when Portman tweeted about his phone call on Sept. 12, it wasn’t yet clear that other documents would come out or witnesses would come forward telling the real story. At the time, with little other information yet public, Portman’s narrative conveniently masked all the chaos and illegality with a tidy cover story: concern over Europe had led to the freeze, but Portman’s advocacy ended it. Simple. Innocent. And not only was Trump saying it, but so was a senator whom Trump could hold up as a credible witness.

But to use the President’s favorite word, that narrative was a hoax, hiding from sight the White House’s illegal shakedown and the chaos that followed.

And now that we know the truth, his participation in this false portrayal begs a series of questions of Senator Portman.

Albert Cesare/The Enquirer

If Portman was duped into being a participant in the White House’s effort to cover its tracks, that’s important to know, and he should say so. You’d imagine he’d want to assure Americans he did not knowingly mislead them. This would also mean that he is at the very least a witness to the impeachable course of action, including an attempt to cover it up with a bogus narrative involving a sitting senator. Whatever conversations Portman had with the White House about the call – before, during and after (including when the two were in Ohio together weeks later) – could shed valuable light on the overall White House behavior, including the president’s consciousness of guilt, along with Pence and Mulvaney.

If Portman wasn’t duped, but knowingly advanced the cover story – in coordination with that president, Pence and Mulvaney, via multiple and well-timed interviews – he has even more questions to answer. And here the conflict of interest is even more egregious, because Portman would have his own reputation to protect by squelching a robust impeachment trial.

Either scenario meets the textbook definition of having an interest in the case, and every vote he takes represents a blatant conflict of interest.

Consider, for example, Portman’s votes last week opposing subpoenaing documents (including information he himself asked for last fall). By hiding these documents, he not only is helping the president cover his tracks, but he also is shielding evidence that might tell us more about Portman’s own direct involvement. Same story if he votes against subpoenaing Mulvaney as a witness. Since Mulvaney was apparently in on the phone call on September 11, Portman voting to muzzle Mulvaney also keeps the nature of Portman’s own involvement hidden.

These examples make it clear that this is not a close call.

This is Legal Ethics 101.

It would be a sad day for Ohio, now and for the history books, if the person occupying the Senate seat once held by John Glenn and George Voinovich participated in the impeachment proceedings with such an egregious conflict of interest, unique among the Senate’s 100 members. It would be even worse if his vote were to be the deciding one keeping new evidence or witnesses out of the impeachment trial.

Rather than violating his oath of impartiality, and before casting any more tainted votes that both protect the president and himself, Ohio’s junior senator must recuse, and he should publicly submit to questions about his involvement in and knowledge of the scandal and the intense effort to cover it up.

David Pepper is chairman of the Ohio Democratic Party.