FOR ROY MOORE AND AL FRANKEN, HISTORY AND THE LAW IS ON THEIR SIDE

Below is my column on the rather transparent calls for ethics investigations of Roy Moore and Al Franken despite the limited scope of potential discipline and the checkered history of congressional ethics.

Here is the column:

Sexual assault and harassment allegations are flying in Washington as Republican and Democratic politicians are called out by women alleging abuse in prior years. From Roy Moore to Al Franken, the frog march down Pennsylvania Avenue is getting longer by the hour. Washington, however, is already moving to control the damage by calling for ethics investigations for everyone. In a town that specializes on managing scandals, the impassioned call for congressional ethics investigation is a standard method of appearing to demand change while changing little, particularly in terms of House or Senate seats.

I have long been a critic of congressional ethics rules, which were written by politicians more as a shield than a sword in corruption or abuse investigations. Like the equally predictable “blue ribbon commission,” these moves allow politicians to claim that they are cooperating with a full and open investigations to dampen calls for their resignations or expulsions. The problem is the rules themselves and the limits of congressional disciplinary action under the Constitution.

The lack of teeth in ethical rules is more than evident in the continued conduct of members who have maintained massive ethic loopholes allowing them to invest in areas in which they legislate, securing jobs for themselves and families with lobbyists, employing relatives in their campaigns, and circumventing nepotism rules. For that reason, it was little surprise that Franken was one of the first to demand a congressional ethics investigation of himself after accused of sexually groping a sleeping woman. It is the equivalent to volunteering to be chased by a wild pack of golden retriever puppies. They are likely to catch you but hardly likely to devour you.

Consider the two leading investigations into Moore and Franken demanded this week. Faced with a nightmare scenario of an Alabama Republican candidate alleged to have not only habitually pursued young girls but to have been put on a watch list at the local mall, Senate Majority Leader Mitch McConnell has pledged an immediate effort to bar Moore from taking a Senate seat. He and others have pledged a comprehensive and immediate investigation should Moore be elected.

Despite my agreement with McConnell that Moore would be anathema as a senator, this is one time where the Constitution would actually support Moore. McConnell could move, as many have suggested, to bar Moore from taking the oath of office. However, the Supreme Court has already rejected such an effort at “exclusion” as unconstitutional in 1967 in Powell v. McCormack. Despite the extensive evidence of corruption against New York Congressman Adam Clayton Powell Jr., the court ruled that he had to be seated since he met the stated conditions in Article I of the Constitution: age, residency and citizenship.

If Moore cannot be excluded for ethical reason, how about “expulsion”? Again, however, this is not as easy as it seems. Article I of the U.S. Constitution states, “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.” Yet, the alleged Moore misconduct occurred decades ago and was never the basis of a criminal or civil action. The citizens are aware of the allegations and could reject them as unproven or false. The congressional ethics committees have always correctly noted that it has little ability to punish members for actions taken in a prior Congress, let alone a prior decade.

Voters are entitled to the representatives of their choosing. Moreover, if Congress could expel a member on such allegations, it could use the power to bar unpopular members by simply producing a couple witnesses or, worse yet, secure a majority through expulsions. Despite all of the pledges for immediate action against Moore, the Constitution favors his taking his seat if elected. Despite the greater number of women denouncing Moore, Franken has one element that is much worse: a photo. The picture of Franken laughing while groping a sleeping woman is the type of image that will not be easy to erase even with Franken’s self-submission to the six-member ethics committee.

Nevertheless, the Senate has not expelled a member since the Civil War. In 1797, William Blount was expelled for treason in his effort to encourage insurrection by Creek and Cherokee Indians to join Great Britain in the invasion of Florida. In the 1860s, 14 senators were expelled due to their treason in aiding the Confederacy. Since the, no one has been expelled despite 17 such efforts. To expel Franken, the Senate would need all 52 Republicans and 15 Democrats to vote for such expulsion.

If Franken follows the well-thumbed guidebook on congressional scandals, his next move would likely be to invite a censure from his colleagues. Such a self-censure move would do little legally since Franken would continue to be able to vote and act as a senator. His colleagues could also strip him of his seniority and committee positions. Franken however can, like Moore, oppose any effort to expel him on constitutional grounds. While the appearance of a challenge with both Moore and Franken as co-plaintiffs is highly unlikely, the Minnesota Democrat could challenge more than symbolic or internal forms of discipline.

None of this will, of course, protect either man from the political costs of these allegations. Yet, one should again not make any assumptions. Like the congressional ethics investigations, the public has a less than stellar record when faced with tainted members. Voters have returned members to Congress after criminal charges like Jesse Jackson Jr. and Mel Reynolds. In the case of Powell, he simply ran for reelection in Harlem on the slogan “keep the faith, baby.” They did and reelected him despite such allegations as paying his wife out of congressional funds for no work.

In the case of Moore, there are still a surprising number of people willing to send a man to the Senate who allegedly could not freely go to the local mall. In the case of Franken, he is no less of an icon for the left. More importantly, Bill Clinton showed the willingness of many Democrats, including liberal women, to ignore comprehensive allegations from multiple women, including a rape allegation. Despite his well-known affairs, which he denied, Clinton was reelected twice and still draws huge adoring Democratic crowds. In the end, many in Washington hope that Moore will lose and Franken will resign. If they do not, however, history is on their side.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.