From Exclusion to Expulsion to Acceptance: There Are No Good Options In Dealing With Senator Roy Moore

senate_large_sealBelow is my column in USA Today on the plan to bar Roy Moore from taking his Senate seat, if he is elected in Alabama.  For once in his checkered career, Moore would actually have the constitution on his side in challenging such efforts.  Like the KüblerRoss model of the stages of grief, the Senate may have to move from exclusion to expulsion to acceptance of a Senator Moore.

From Senate Majority Leader Mitch McConnell to former presidential candidate Mitt Romney to virtually every voter still capable of being shocked by politicians, there’s growing consensus that Roy Moore should drop out of the Senate race in Alabama. The problem is a single conspicuous holdout: Roy Moore himself.

Calling this a “spiritual battle,” Moore has refused to withdraw and various senators, including McConnell, have pledged to prevent him from ever taking his seat in the Senate. Indeed, McConnell reportedly has said he would prefer to lose the seat than have it go to a man like Moore. In the end, however, he may get both the seat and the man.

Moore is accused by a widening array of women and former colleagues of a history of pursuing young girls. The on-the-record allegations include a woman who says Moore molested her when she was 14 and another woman who says he sexually assaulted her when she was 16, both when he was in his 30s. Some named sources have detailed how Moore was on a watch list at the local mall as a creepy figure who routinely flirted with young girls.

One can certainly understand why McConnell would have serious qualms about a guy barred from the local mall gaining entry to the United States Senate. However, for a change, the former Alabama Chief Justice (who unsuccessfully defied judicial authority in refusing to remove a Ten Commandments monument) has the Constitution on his side.

The exclusion option

One possibility would be to refuse to seat Moore when he shows up to take his oath. The problem with this approach is the prior Supreme Court decision in Powell v. McCormack. That case involved the refusal to seat New York Rep. Adam Clayton Powell Jr. in 1967 when Powell was accused of a variety of claims, including misappropriated congressional travel funds and paying his wife a congressional salary for work that she never performed.

 House Speaker John William McCormack pushed through a resolution that barred Powell from taking his seat pending an investigation. Powell famously told his voters “keep the faith, baby” and, after the House voted to exclude him, Powell ran for his own vacated seat and won. He was later reelected by voters who appeared to care little about his corruption (much as Alabama voters continue to support Moore).

Powell and 13 of his constituents sued over the refusal to let him take the oath and his seat in Congress. The Supreme Court ruled against the House and found that Powell had to be seated by virtue of meeting the constitutional standards of his election — age, residency and citizenship. The court ruled that Harlem citizens were entitled to have their representative seated and there can be no expulsion until a member is sworn in.

In other words, if Moore wins, he must be allowed to take his oath and be seated as the senator from Alabama.

The expulsion option

Once Moore is sworn in, Congress could presumably move to expel him.  Article I, section 5, of the U.S. Constitution states that “Each House may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” Rather than excluding Moore, the Senate could seek to expel him after he took the oath.

However, Moore would also have a viable claim on this question. The misconduct alleged in this case has never been the subject of prosecution and Moore (who denies the allegations) has never even been indicted. Moreover, these events occurred decades ago and the statute of limitations has run out on both criminal and civil actions. If he were elected, the voters of Alabama clearly would have rejected either the credibility of the charges or dismissed their significance.

In its decision in the Powell case, the Supreme Court drew the distinction between exclusion and expulsion as not “merely one of form.” However, it noted that there has been a long-held view that a house would not expel over conduct in a prior Congress — let alone in a prior decade in the case of Moore.

Indeed, the House report in 1967 stated that “both Houses have distrusted their power to punish in such cases.”  When the House was considering the expulsion of John W. Langley in 1925, the House noted “it must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense.”

The effort to expel a Senator Moore for conduct alleged to have occurred decades ago would, therefore, be highly questionable from a constitutional standpoint.

The irony is, of course, inescapable and unpalatable. After running on the denial of constitutional protections to groups like transgender citizens, Moore may indeed be saved by the Constitution that he has spent his life defying.

However, the implications of expanding the expulsion authority are more troubling than even the image of seating someone like Moore.  If the Congress could expel members for unproven allegations occurring decades in the past, it could negate election results and manufacture majorities. It could also use the power to target unpopular individuals by simply producing a handful of “witnesses” to actions never recorded in formal proceedings or other forums.

The ultimate decision of whether there will be a Senator Roy Moore will remain where it began: with the people of Alabama.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley.

107 thoughts on “From Exclusion to Expulsion to Acceptance: There Are No Good Options In Dealing With Senator Roy Moore”

  1. There are all of these foxy women out there on FoxTv and other networks who “doll up” with make up and show their breasts etc. Yet they complain about some guy who might respond to such things. Megyn Kelly. Nice on Fox. Quite bitching about guys like Al Frankin who might say give me a blow.

  2. “Jeff Flake: GOP is ‘toast’ if it becomes party of Trump, Moore”

    By Samuel Chamberlain | Fox News

    “Sen. Jeff Flake, R-Ariz., was caught on a hot mic Friday telling a Republican mayor that “if we become the party of Roy Moore and Donald Trump, we are toast.”…

    “Flake has also been unsparing in his criticism of Moore, the Republican candidate in next month’s Alabama Senate special election.

    “On Monday, after several women came forward to allege sexual misconduct by Moore, Flake said he would “run to the polling place” to support Democrat Doug Jones if he was an Alabama voter. Flake also said that he would vote to expel Moore from the Senate should the Republican candidate win the Dec. 12 election.

    “Flake has also criticized Moore in the past for stating that Rep. Keith Ellison, D-Minn., should not be seated in Congress because Ellison is a Muslim.

    “”When a judge expressed his personal belief that a Muslim should not be a member of Congress because of his faith, it was wrong,” Flake said last month. “That this same judge is now my party’s nominee for the Senate should concern us all. Religious tests have no place in the United States Congress.”” -By Samuel Chamberlain, Fox News

    1. Correction: Jeff Flake is toast. He was a very bad mistake. A closet democrat in republican clothing. Good riddance.

      “What do you call someone who lectures players on how to play ball but then grounds into a double play every time he’s up to bat? A Jeff Flake. Or maybe just a plain flake.”

      “Jeff Flake is why we have Donald Trump. The vacuum of leadership had to be filled at some point. Many of us caught in between are disappointed because we have always stood for bold ideas — ideas that have been overshadowed by the clown show — but the last person who has the right to complain about Trump is Flake.”

      -DH, CR 8/17

  3. Question: If the yearbook is proved a forgery, how many of you who have already judged Moore as guilty in that case would change your judgment concerning Moore?
    just askin’

    1. The yearbook will not be proven a forgery. There’s no foundation for alleging the forgery of Moore’s signature on the yearbook inscription. The court document that Nelson received in 1999 has the rubberstamped Roy Moore signature on it. The alleged forgery of Moore’s signature on Nelson’s yearbook does not look like the rubberstamped Roy Moore signature on the court document. It does, however, look like the handwritten examples of Roy Moore’s signature that his own lawyer, Jauregui, made available at his press conference alleging the forgery of Moore’s signature from the dismissal document that Nelson received in 1999. Thus has Jauregui asserted that Nelson both copied and didn’t copy the rubberstamped Roy Moore signature. Whence the foundation for the forgery allegation is self-contradictory.

  4. The problem isn’t Roy Moore. The problem is that no one wants to ask the obvious questions:

    – What were these young ladies parent’s telling then 30’ish Roy Moore when he called on the telephone for their daughters?

    – How come the woman lied and said she’d only seen Moore once back in the 1970s?

    – What did “DA” mean with Moore’s signature in the yearbook?

    – Why was the yearbook signature dated December?

    – What did the two Washington Post reporters that spent two weeks In Alabama “convincing” women to come forward actually do? And why does one of them have a criminal record?

    1. andrewworkshop asked, “How come the woman lied and said she’d only seen Moore once back in the 1970s?”

      Beverly Young Nelson never appeared in court before Judge Roy Moore. Ergo, she did not lie about not having had contact with Moore in the years since the incident that she alleges.

    2. andrewworkshop, have a gander at the following excerpts from an article at Thinkprogress about Moore’s lawyer, Phillip Jauregui’s, allegations against Beverly Young Nelson.

      “The documents do show that Nelson, then Beverly Harris, filed a divorce action against her then-husband in May of 1999. All of the initial documents, however, were signed by a different district judge, W. D. Russell. On May 25, 1999, Judge Russell scheduled the first hearing for the case for June 16.

      But that hearing never took place. In June, before the scheduled hearing was set to take place, she filed for a motion to “continue” (delay) the hearing because she and her husband “are going to counseling and are attempting to reconcile.”

      A month later, she filed a motion to dismiss the case. That appears to be the only document Moore signed, and given there was no hearing, there is no reason the divorce action would have required her to enter the courthouse or have contact with Moore.

      Moore’s attorney acknowledged that he didn’t even personally sign this document. Rather, it was a routine filing where his name was stamped by an assistant. Nelson did eventually file for divorce again, but it was five years later, and a different judge, District Judge Donald W. Stewart, oversaw and signed the final divorce papers.”

      That last paragraph is especially telling, andrewworkshop. Moore’s signature on the dismissal document was a rubberstamped signature requiring the initials of his administrative assistant who stamped that document. The initials of that administrative assistant just so happen to have been D A. Meanwhile, Moore’s rubberstamped signature does not match Moore’s own handwritten signature on the examples that his own lawyer, Jauregui, released to the press. But even more importantly, the Roy Moore signature on Nelson’s yearbook looks like the examples of Moore’s handwritten signature that Jauregui provided and does not look like Moore’s rubberstamped signature that Nelson received on the dismissal document in 1999.

      If needs be, I can go back over that one more time, two more times, three more times . . .

        1. Did Gloria release the yearbook to you? Are you an unbiased professional?
          I didn’t think so – I’ll tell you what – instead of pretending, call your bud Gloria to release it and get it examined in reality- she could end his career by Tuesday. Sheesh.

  5. Lets cut to the chase. I am not talking about Chevy Chase here. Just look at some of the news women on tv who are bitching about Al Frankin or others. They are all dolled up with exotic makeup.
    Why do women do that?
    Could it be that Al Frankin was enamoured by some broad who was all dolled up and she in fact enticed him to “grope:”?
    So Megyn Kelly: remove all the makeup and just go on tv as a human and not a hooker.

    1. Liberty Second, this is at least the third time you’ve registered this same complaint against women. Do you have a uncontrollable urge to grope news women on TV because they’re all dolled up with exotic makeup? Do you seriously think that Al Franken had an uncontrollable urge to grope a woman wearing a flack jacket and a combat helmet? Which do you prefer to grope, Liberty Second? Barbie or G.I. Jane?

  6. The People vote for the candidate of their choice.

    Courts of law decide criminal and civil matters.

    Judge Roy Moore is not in jail.

    Judge Roy Moore is not broke.

    Judge Roy Moore is eligible.

    The People will make the decision.

    Corrupt entities may challenge the People.

    1. George said, “Judge Roy Moore is not broke.”

      George, I’m curious as to which of the several senses of the term “broke” you would have us read in your statement above. I’m guessing it may be an allusion to wild horses. Please correct me if I’m wrong.

      1. The accuser and others have the right to attack Franken for his misdeeds but the perpetrator in chief does not.

          1. Whatever…Trump is a hypocrite. He has more accusers then do either Moore or Franken. Trump calls the women liars all 19 of them.

            1. According to the OOC data released Thursday, there have been 268 settlements. On Wednesday, Rep. Jackie Speier, the California Democrat who unveiled a bill to reform the OOC, announced at a news conference Wednesday that there had been 260 settlements. The previous tally did not include settlements paid in 2015, 2016 and 2017.

              Paid by TAXPAYERS!

              Speaking of hypocrites:


              1. Should the names of the House and Senate members that settled be released released? Franken is not among them.

              2. To be clear:

                “On Thursday, the Office of Compliance released additional information indicating that it has paid victims more than $17 million since its creation in the 1990s.”

                *** “That includes all settlements, not just related to sexual harassment, but also discrimination and other cases.” *** (-from the linked CNN article, above)

                And there are hypocrites on both sides of the aisle.

                1. It’s worth reading this article, in light of the one posted by Olly:

                  “Besides sexual harassment, claims covered can include labor law violations, racial and religious discrimination cases, and discrimination against people with disabilities.” -via the following link


                  “The only other year to come close to the fiscal 2007 total was fiscal 2002, when 10 cases were settled for just under $4 million. That figure was possibly due to claims related to the anthrax attacks in 2001, when congressional offices received letters laced with deadly anthrax spores.

                  “Legislative Branch appropriations bills for fiscal 1997 through fiscal 2017 have appropriated funds for awards and settlements under the Congressional Accountability Act, the OOC said in a release.

                  “The OOC did not provide a breakdown for the type of cases settled. Besides sexual harassment, claims covered can include labor law violations, racial and religious discrimination cases, and discrimination against people with disabilities.”

                2. And there are hypocrites on both sides of the aisle.

                  Absolutely! The outrage should be that the citizens in this country don’t have this blanket of protection. If the average citizen is accused they are on the hook for these types of settlements financially, personally and likely professionally. Members of Congress on the other hand aren’t paying out of their own pocket, the taxpayers are. Imagine how aggressively the attorney’s representing the accused can pursue the accuser. They have all the resources of the federal government at their disposal to fight these accusers. How many cases were not paid out? The results of these claims are not reported. We don’t know which lawmakers have been accused, dismissed, settled. We only know the payouts on settlements. What are the costs incurred to defend the members of Congress? Again, paid by the taxpayer.

                  1. It’s a bit more complicated…

                    “Fiscal 2007 stood out with more than $4 million in settlements paid — the highest of the last 21 years. That amount was likely due to complaints from Capitol employees, who worked in underground utility tunnels, filed against the Architect of the Capitol’s office; the employees alleged harassment and intimidation after they publicly revealed the hazards associated with their jobs.

                    “The only other year to come close to the fiscal 2007 total was fiscal 2002, when 10 cases were settled for just under $4 million. That figure was possibly due to claims related to the anthrax attacks in 2001, when congressional offices received letters laced with deadly anthrax spores.” -from the Roll Call article, I believe

                    We’re talking about 264 settlements over 20 years and — as noted below — “they were for a variety of Congressional Accountability Act violations.”


                    “CORRECTION (Nov. 16, 2017, 7 p.m.): An earlier version of this article stated the 264 settlements were all for sexual harassment; they were for a variety of Congressional Accountability Act violations.”

            1. “The president’s jab at the Democratic senator for sexual harassment calls attention to his silence about Roy Moore—and his own past behavior. “

              1. Gretchen Carlson is correct. And to make sure people are not making political hay out of this, we should not prosecute anyone in the court of public opinion. If we allow allegations to be treated as the equivalent to evidence, then we will be progressing our way back to the early 17th century form justice.

                1. The perpetrators of 9-11 stood trial in the court of public opinion. Not one has stood trial in a court of law.
                  Yet, your suggestion is that we should have given Bin Laden and KSM the benefit of the doubt?…presumption of innocence?….what if the person admits to the crime, as OBL did privately in early 2002? The evidence placed into the court of public opinion was fairly good (except the misinformation about Saddam Hussein being in league with Al Qaeda). The IDs of the 19 attackers was certain. The money trail back to OBL, and the planning cell in Hamburg, these were good,solid evidence.

                  And you’re saying that it was unfair to pin 9-11 on Al Qaeda because it never went to trial?

                  What about the Fatwa declaring war on the US in 1998 circulated by Al Qaeda?

                  How about LHO never going to trial for killing JFK? Should we provide him presumption of innocence?

                  1. What court of law would you have preferred the 9/11 perps and LHO be tried in? You are aware that the perpetrator of the first terrorist attack against the World Trade Center was tried in a court of law?

                    All that aside, conflation makes your point sound weak.

                    In the case of Moore, the court of public opinion isn’t taking into account key questions in the case. This is because the narrative is set and thus the media will try and shape every single story to fit that narrative. There are massive holes in the allegations against Moore.

                  2. The perpetrators of 9-11 stood trial in the court of public opinion. Not one has stood trial in a court of law.

                    Have you been drinking? If you cannot understand the difference then you don’t need an answer from me, you need to have your head examined.

                  3. Well, yes, given the fact that LHO was innocent. Duh! Did you hear his testimony? He said he was a “patsy.” He was. “Best Evidence” by David S. Lifton. Get back to us after you have read the facts; the truth. I’ll bet you also think “Crazy Abe” Lincoln didn’t shred the Constitution as an actionable traitor and tyrannical despot.

                2. Gretchen Carlson is a product of “Affirmative Action Privilege,” “Quota Privilege” and the deleterious central planning, redistribution of wealth and social engineering of the welfare state which are “fundamentally transforming” America and Americans into extinction.

                  If American women were engaging in their natural function rather than assuming the role of males, abortion and termination of procreation sufficient to the vitality, perpetuation and growth of the national population, Gretchen would not have been subjected to the adverse circumstances she found herself in and America would not be importing its population and replacing Americans with hyphenates. The American birthrate is in a “death spiral.”

                  In a number of years similar to the lifetime of America, the nation and its population will have been subsumed by burgeoning foreign states and teeming masses.

                3. Olly said, “And to make sure people are not making political hay out of this, we should not prosecute anyone in the court of public opinion.”

                  I agree with the distinction between allegations leveled in the press versus evidence entered in court of law. But the so-called court of public opinion is not a court of law anymore than making political hay out of allegations leveled in the press is a “prosecution” involving legal jeopardy for the accused.

                  Otherwise, the Trump campaign would have been regressing to the early 17th century form of justice when Trump railed against “Crooked H” and vowed to “Lock her up” whilst asserting that “She ought never to have been allowed to run.”

                  And that’s just one counter-example, Chief.

              2. Nah, I see it as Trump hitting back hard by calling out the sanctimonious hypocrisy of the Democrats and the media.

  7. The governor of Alabama is a 73 year old woman who said she intends to vote for Roy Moore and the election will take place as scheduled.

    It’s obvious the year book signature was forged by someone stupid enough to think “D.A” stood for District Attorney and not the initials of his assistant, Delbra Adams. And Gloria Allred was stupid enough, or arrogant enough, to put the yearbook out there as evidence without even asking the pertinent questions of her client. “Why would anyone question that is was Roy Moore’s signature?” she said.

    It’s clear that McConnell is just bluffing when he says they will refuse to seat Moore, or move to expel Moore if he is seated. Can you imagine the precedent that would set if the Senate tried to expel a member based on unproven accusations from decades ago? They do not want to open that can of worms.

    It’s clear Moore liked to pursue teenagers to date which is creepy and wrong, but he says he had the permission of the parents of the girls he dated, and he denies the more serious allegations. Being creepy may not be enough to keep him out of the senate, even today. Former Senator and VP, gropey Joe Biden is certainly creepy. Sen. Bob Menendez and his underage hookers allegations is creepy. Sen. Al Franken shoving his unwanted tongue down a woman’s throat and grabbing her boobs in a humiliating photo is creepy. They all got into the club. And so far, they all get to stay.

    Alabama voters know enough about Moore to decide his fate. They know he is anti-gay, anti-Muslim, anti-abortion, and probably a pedophile. If Moore wins, so be it. Alabama will have spoken. God bless America.

    1. It’s clear Moore liked to pursue teenagers to date which is creepy and wrong,

      There is no categorical imperative at work here. At worst it’s odd in a contemporary context inasmuch as adolescents are not assumed to have the social competence which was normal in 1955.

      1. DSS, SOT, TSFS, A&AWG and more: “At worst it’s odd in a contemporary context inasmuch as adolescents are not assumed to have the social competence which was normal in 1955.” (Tripped up by the spam filter yet again — or so s/he claims.)

        When Leigh Corfman was 14, it was 1979 — just to be clear.

        From the Washington Post:

        Leigh Corfman says she was 14 years old when an older man approached her outside a courtroom in Etowah County, Ala. She was sitting on a wooden bench with her mother, they both recall, when the man introduced himself as Roy Moore.

        It was early 1979 and Moore — now the Republican nominee in Alabama for a U.S. Senate seat — was a 32-year-old assistant district attorney. He struck up a conversation, Corfman and her mother say, and offered to watch the girl while her mother went inside for a child custody hearing.

        “He said, ‘Oh, you don’t want her to go in there and hear all that. I’ll stay out here with her,’ ” says Corfman’s mother, Nancy Wells, 71. “I thought, how nice for him to want to take care of my little girl.”

        Alone with Corfman, Moore chatted with her and asked for her phone number, she says. Days later, she says, he picked her up around the corner from her house in Gadsden, drove her about 30 minutes to his home in the woods, told her how pretty she was and kissed her. -Washington Post excerpt

        1. Solid reporting by the WaPo, but Moore denies the allegations and calls it a political smear job. Bob Menendez denies the allegations against him cavorting with underage prostitutes and calls it a political smear job. Al Franken essentially denies shoving his tongue down that woman’s throat by saying that’s not how he remembers the skit rehearsal going.

    2. TBob said, “It’s obvious the year book signature was forged by someone stupid enough to think “D.A” stood for District Attorney and not the initials of his assistant, Delbra Adams.”

      Firstly, Moore’s lawyer, Phillip Jauregui, conceded that Moore used the acronym D. A. alongside his handwritten signature when he was a Deputy District Attorney. Jauregui had to concede that since the acronym D. A. appears in the examples of Moore’s handwritten signature that Jauregui released to the press.

      Secondly, the Roy Moore signature on the court document that Beverly Young Nelson received in 1999 was a rubberstamped Roy Moore signature that does not match the examples of Moore’s handwritten signature that Jauregui released to the press nor the alleged forgery of Moore’s signature on the yearbook inscription.

      Whence the alleged forgery that TBob calls “obvious” is directly contradicted by Moore’s own lawyer, Jauregui, who simultaneously claimed that Nelson supposedly copied the rubberstamped Roy Moore signature from the court document she received in 1999 and that the Roy Moore signature on the yearbook inscription does not match the rubberstamped Roy Moore signature on the court document that Nelson supposedly copied.

      Are you following that, TBob? Or would you like me to go back over it one more time until it becomes “obvious” even to you?

      1. Diane – Moore gave Allred until Friday to release the yearbook for authentification of the signature. She has not. Wonder why????

        1. Paul, did Moore say what happens when Friday comes and goes and the yearbook has not been released for the stated purpose? Where’s the legal jeopardy? Whose legal jeopardy is it?

          The argument presented by Moore’s own lawyer, Phillip Jauregui, refutes itself. The alleged forgery of Moore’s signature does not match the rubberstamped Roy Moore signature on the court document from which the alleged forgery was purportedly copied.

          1. Diane – even you have been making claims about color changes because of lighting. It needs to be examined by experts.

            1. Paul, I’m already on the record as favoring expert forensic analysis of the yearbook inscription. BTW, there are color photographs of the evidence that show no color difference in the inscription. One of them, taken by Lucas Jackson of Reuters can be viewed in an article to which I posted a link just the other day or two.

            2. It was five days ago, already. November 14th on the thread entitled Moore Charges As The Alabama Candidate Threatens To Sue Washington Post. The linked article is entitled Text Of Beverly Young Nelson’s Accusation Against Roy Moore. It’s more or less in the middle of the last page on that thread.

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