Don’t Be So Quick To Expel Roy Moore from the Senate

Former Alabama Chief Justice Roy Moore speaks during a Senate candidate forum held by the Shelby County Republican Party in Pelham, AL on Aug. 4, 2017. (Photo By Bill Clark/CQ Roll Call via AP Images)
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Over the last 48 hours, Republicans have been abandoning Roy Moore in droves. Last night on his Fox News show, Moore dead-ender Sean Hannity put Moore under a 24-hour deadline to prove his innocence or drop out of the race. In this climate it’s now widely assumed that should he be elected Moore either will be or should be expelled from the Senate over the multiple accusations of pursuing and in some cases assaulting teenage girls in the 1980s.

This is a very questionable idea.

Let me start by stating explicitly that Roy Moore is an execrable character. Before we ever heard of his sexual misconduct and alleged assaults, he had repeatedly and willfully disregarded the laws of the United States as a state judge. He is also synonymous with hatred and bigotry of various sorts. He’s awful. If he manages to get elected it will be a disgrace for the state of Alabama.

But we’re dealing here with issues which must be given due weight and consideration apart from Moore’s alleged crimes. Our entire constitutional system is based on duly constituted elections for public officials. The ability for a house of Congress to expel one of its own members is a power so great that it contains within it the power to overturn our entire system of government. Our whole system of government is based on the idea that the people of individual states decide who will represent them in the Senate rather than the Senate deciding who will or won’t represent a given state.

Yes, there are exceptions. And yes, the constitution explicitly gives the Senate the power to expel members. But the history is instructive. Fifteen senators have been expelled from the Senate in the history of the country. All of them were expelled for what amounted to treason and sedition. Fourteen of those were expelled in 1861 and 1862 for supporting the Confederacy. The one remaining was expelled in 1797 for conspiracy and treason tied to inciting the British to invade Spanish Florida. Each of the fifteen was expelled for treason, making war against the country itself, something that makes legitimately being a part of the government an impossibility.

In fairness, twice in recent history, the Senate committee which reviews these matters recommended a senator for expulsion but the senators in question resigned before the Senate could vote. This was Harrison Williams in 1982 (bribery conviction in Abscam) and Bob Packwood for a long history of sexual harassment as Senator. I think proceedings may have also begun against John Ensign who got charged with financial crimes tied to an affair. But I’m not certain. In any case, he resigned.

Packwood’s case is the most analogous. The Senate was preparing to expel him for a number of reasons. But they were all reasons rooted in a long history of sexual harassment and sexual misconduct. I don’t remember every particular but I believe there were numerous instances that would now be classed as assault. (What happened in Packwood’s case was that he kept a diary in which he detailed it all.) But those were things he did as a Senator and more or less right up to the point he was about to be booted. As I noted above, Senators have only been expelled from the Senate for sedition. Others who resigned from the Senate under threat of expulsion did so because they had been convicted of crimes or were found by the Senate to have violated rules as a senator.

It is also worth noting that in most of these cases where a Senator resigned ahead of being expelled, they had done things which would have made it highly unlikely that they could ever be elected again. This significantly diminishes the democratic process arguments involved since in most or all of these cases the Senate was expelling or threatening to expel a senator who voters would toss if they could. If Alabamans vote Moore into office, that will demonstrably not be the case.

As I stated above, this is not to defend Moore who was obviously an ogre well before we found out about his penchant for teenage girls. But we have a separate interest in not casually using extreme powers for reasons of momentary expediency – and that is what it is for Republicans right now. Republicans have already canvassed the idea of simply canceling the election – something Alabama state law apparently may make possible through a series of workarounds but is obviously improper in any democratic practice sense. Indeed, it may conflict with federal law or even be unconstitutional. What Republicans are reacting to is what they see rightly as a situation of extreme political embarrassment. They’ve considered canceling the election. They’ve considered refusing to seat Moore. (From what I can tell that’s no longer possible under Supreme Court decisions that only allow non-seating for issues of eligibility or the legitimacy of the election.) Now they’re treating it as open and shut and obvious that he should be immediately expelled. They have shown with several different proposed strategies their willingness to do all manner of totally crazy things to save themselves from the will of Republican voters in Alabama.

Moore’s defenders say he’s innocent until proven guilty. That’s obviously a dodge in any political sense. He has multiple, credible accusers. And he doesn’t even clearly deny the underlying issue: dating teenaged girls while he was a man in his early 30s. Voters have every right to make their own judgments in terms of whether to vote for him. There’s no innocent until proven guilty standard for getting elected senator.

But I would argue that the lack of any indictment let alone conviction is relevant in terms of potentially expelling him from office – especially in a case in which, if he’s elected, his constituents will have been made fully aware of his claimed wrongdoing. The issue isn’t fairness to Moore. It’s about not setting terrible and dangerous precedents for reasons of political expediency. After all, there’s a very simple way to keep Roy Moore out of the Senate: support his Democratic opponent Doug Jones! Even seeing this through a narrow GOP partisan lens Republicans would be highly likely to retake the seat in four years.

Having said all this, I’m not saying definitively that it would be wrong to expel Moore. What concerns me is that it is being treated as a simple and obvious expedient when it is, in fact, a completely unprecedented move and highly questionable in terms of the precedent it sets regardless of Moore’s past crimes. The party at issue here isn’t Moore. It’s Alabama voters. The polls released since this scandal broke do not show them in a very good light at all. But voters have a perfect right to be terrible.


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