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. 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.

    This incorporates two flat out lies. How do you look at yourself in the mirror?

  2. One can certainly understand why McConnell would have serious qualms about a guy barred from the local mall

    You’ve been quite credulous with these claims. No one should hire you as an attorney.

  3. One can certainly understand why McConnell would have serious qualms about a guy barred from the local mall

    You’ve been extremely credulous evaluating these claims. No one should hire you.

  4. Turley posted 6 articles about Moore since Nov. 10. The blog hasn’t broached the subject of Brett Talley’s appointment nor, the Repub. budget which further attacks the middle class. The exclusion of medical expenses as a tax deduction has no defense just as the gift to the rich- carried interest has no defense. Both reflect the U.S. oligarchy.
    If the right wing wanted to deflect from important topics, we should expect their communication forums to obsess about Moore.

  5. I have no problem with careers being destroyed over sexual misconduct. What is of utmost importance is defining the standards before and not after those lives are destroyed. Should the Senate have the power to disenfranchise the elected choice of a state for what amounts to that choice seeming creepy? If that’s the standard, then no position would be secure. How about this, the age of consent is determined at the state level and not the federal, right? What if 49 states set the age of consent at 18, would they be able to unseat the elected Senator from the one state that allowed a 14 year old spouse? What if the state of Alabama determined they want Moore to represent them in the U.S. Senate, warts and all; just as long as he has not been indicted and certainly not convicted at trial. Should the Senate be able to set a warts and all standard preventing such a choice?

      1. Have you had a stroke? Clearly your T, H, E keys on your keyboard are functioning properly. I’ll be more than happy to respond to your comments in the future when you are well enough to form adult words and sentences.

        I wish you a speedy recovery.

  6. Moore represents the tip of the iceberg in American politics. There is always more underneath the surface.

  7. Did he date teenagers? Who the hell cares? Was it illegal? No so why are we even talking about that.

    As far as those accusing of him of actual crimes? They have already been proven to be liars. This is a setup because McConnell lost 34 million dollars to Moore in the primary and the GOP Establishment wants to see the Democrat win instead. Not because of so called ‘Morals’ but because they are all corrupt crooks.

    I sincerely mean this, most every sitting US Senator probably should be rotting in prison

    1. In a perfect world we would have Article V Convention and replace most of Congress. We would then create an investigation formed by every state sending their top LEOs to do a massive RICO of Congress and empower them Art V to have unsurpassed virtually limitless subpoena powers, it would suspend the Bill of Rights for anything govt related & lock out the Judicial from the process. If a bank refused to hand over records, they go to jail and their files seized.

      In other words,SCOTUS would be muzzled and powerless to weigh in on the matter. The Investigation would be a single focus of investigation into everything of the Federal govt for the past 50 years and endless indictments would rain down. Id cap it at 10 years and start with the most recent crimes.

      The entire point would be expose every crime possible in the Federal govt and put the fear of God into future govt.

      While this sounds draconian and scary, its needed. Our govt has been corrupt as hell since the 1890s

      1. Anonemouse – you are the reason the rest of us are scared to death of an Art. V convention. However, the results would have to be approved by the states before any of the radical measures you envision would kick in. And I don’t see any government without an executive, legislative and judicial branch not happening under and Art V. convention, unless it was written by 2nd graders.

  8. I expect Moore to win once the lies
    are exposed.
    This is simply a lynching by the Liberals.
    Remember Clarence Thomas hearings.
    What a disgrace.

  9. As concerns exclusion, the precedent you cite seems clear. However, on the question of expulsion, you cite only references to the general practices of the houses of Congress, not to any legal authority binding them to those practices. The constitution states that each house may set its own rules and, by a two-thirds majority, expel a member. Though it may be true Congress had not previously been in the habit of expelling members for conduct prior to their election, I don’t see what would bar them, constitutionally, from changing that rule.

    1. DaveL – the key phrase is “only expel a member.” So, they have to accept Moore first, then kick him out. However, that would require a Congressional hearing and I am not sure how many of Moore’s accusers could withstand a Congressional hearing. That is what happened with Adam Clayton Powell, who was twice the Civil Rights leader JFK was. He just took the same took the same graft as the white boys and they used it against him.

      1. It still remains that these are political reasons why Moore would not be expelled, not legal reasons why he cannot be expelled. I still don’t see how Moore could have any constitutional grounds to block his own expulsion.

        1. DaveL – they don’t need legal reasons to expel him, but they do have to accept him first. Powell’s defense was that he was doing the same thing as the white Congressmen, why were they picking on him, just because he was more open about it?

          1. Powell was full of it. Thomas Dodd had the same excuse.

            Not sure why Congress tried the exclusion gambit, bar that perhaps they didn’t have the votes to expel him, which requires a supermajority.

  10. Congress condemns Moore to make it appear that others in Congress are better than Moore is. The public votes for Moore to demonstrate that they view Congress as nothing more than a den of perverts and trained seals. Since Congress seems to represent only those who offer the biggest bribes, let those that Congress represents deal with perverts and trained seals. Until the US political system changes to a form where it serves the public, the electorate is unlikely to respond rationally.

  11. Franken gets da ethics probe. They need to
    Bring. T rump and all
    His gals into testify. If Moore is elected da grown
    Kids could testify. Put em all
    Under oath.

  12. Maybe, despite this, he would make a senator capable of promoting the general welfare.

  13. We cannot allow Congress to immediately dictate what it considers acceptable in a newly elected official that only recently might have been elected. If Mr. Moore wins election, that is the voters’ choice and that should be respected–especially when the suitability for him has been debated soundly in the United States. Otherwise establishment members of Congress will discharge any newly elected member whenever it suited them and disenfranchise the voters in their district.

    I’ve no use for Mr. Moore either way. That is the decision of his state.

    On another note, this shaking out brings us one step closer to the public becoming increasingly intolerant of lecherous candidates. Maybe corruption will be next.

  14. I wonder if Moore will offer any “spiritual” advice to Senator Franken if Moore should be elected?

    1. Carterbo – do actually believe that Franken believes in God and would be open to religious advice?

      1. Moore has no problem citing a religious superiority during his turmoil. Using that experience to assist a potential fellow Senator, in a bit turmoil himself, might be beneficial for Moore in future elections.

        1. Carterbo – Franken is a cryer. Does it on command. Did it during his apology to his staff. Granted he represents Minnesota, and I have never understood their political choices. One would think that Minneapolis had more power now and you could get rid of the farmers’ candidate. Besides, I don’t think he would survive a religious experience.

          1. You don’t understand the political choices of the voters of Minnesota. Yet, presumably you understand the voting choices of the voters of Alabama?

            1. dogfightwithdogma – I am leaving it up to the voters of AL, however, I think they are being manipulated by both the left and the right.

  15. There is more than enough documented information available to know Moore is unfit for office. In a related matter, I think Franken should resign as well. His apology was a refreshing change from some others but only came after being called out. He had a chance to apologize years ago when running into Tweeden at an event but did not.

    There are lots of ways I could find to excuse Franken because I agree with him politically. I choose not to because I’d be little different than the Republicans who stand with Moore and stood with Trump when their behavior became known. The standard I’ll use as to whether to call something a joke or a prank is. “What if it were my daughter?”

    1. enigma – your daughter would probably intimidate Franken. 😉 If he touched her, she would cut his hand off. 🙂

  16. I wouldn’t give up on Moore just yet. Don’t believe the MSM. Allred has been backing and hoeing on releasing the yearbook, so that looks dodgy. One of the former mall managers says that Moore was never banned from the mall.

    1. The newspapers want me to believe they were able to locate people who were employed at a given mall in 1980 who have clear memories of who was or was not on the security guards’ watch list. The producers of Cold Case assumed their viewers were credulous to that degree.

  17. Moore will not be the next Senator from Alabama. Even in Alabama, this man is almost unelectable to a statewide office. The only way he wins the election is if the Demo candidate is also charged with groping women.

        1. It’s doubtful the reporters and editors take their own thesis seriously. Why do you?

          1. “It’s doubtful” that many people care what you think, AYARwtSF.

            (Tripped up by the spam filter again?? Why you?? : ))

            1. anonymous, the link is informative as always. FTR, I do care what you-know-who thinks. Because we-all-know-who is so reliably disagreeable that this blawg just don’t feelz like home anytime monogram-madness goes away.

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