Below 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 Kübler–Ross 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.