Sunday night I asked, Would the Senate invoke Article I, Section 5, clause 2, to “expel” Senator Roy Moore?

If enough evidence accumulates, and if Moore does win the election, the Senate has wide discretion in expelling members.  Article I, Section 5, clause 2, provides that: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member.” The Senate could hold proceedings in which testimony and other evidence is gathered, and could reach a determination.

Since then, many Republicans have suggested that the remedy for a Moore win would be an effort to “expel” Moore. The latest suggestion was by Mitch McConnell, as reported by The Hill:

Senate Majority Leader Mitch McConnell (R-Ky.) is warning that Alabama Senate candidate Roy Moore will immediately face a probe by the Senate Ethics Committee if he wins the special election next month.

“It would be a rather unusual beginning,” McConnell told The Wall Street Journal at a CEO Council event on Tuesday. “I’d like to save the seat, and it’s a heck of a dilemma when you’ve got a completely unacceptable candidate bearing the label of your party within a month of the election.”

McConnell said that as part of an investigation Moore would be asked to testify under oath, the WSJ reported.

An Ethics Committee investigation could pave the way for the Senate to try to expel Moore, though McConnell hasn’t publicly backed that option.

The Senate last expelled a member in 1862. McConnell oversaw the Senate’s ethics panel when then-Sen. Bob Packwood (R-Ore.) resigned in 1995 amid sexual harassment allegations and under the threat of expulsion.

A Senate committee trial at least would take real evidence, under oath, subject to cross-examination. Similarly, forensic evidence would be subject to professional examination, and may help resolve credibility issues.

One good example of how public sleuthing is clouding the issue of guilt or innocence is the online analyses of the handwritten note in the yearbook of accuser Beverly Nelson. That note, if authentic, ties Moore to Nelson, and is being cited widely as proof Moore is guilty.

A slew of public personalities are claiming the handwriting is a match, including Lawrence O’Donnell.

Others are claiming it’s not a match.

Trial by Twitter is no way to determine guilt or innocence.

When I was in private practice, I handled several cases in which handwriting examination was critical. The issues in most of the cases were whether certain securities brokerage documents were signed by the customer, and whether other markings on the documents were those of the customer. I hired and cross-examined handwriting examiners, and learned a few things that have stuck with me even though I’ve been out of private practice for a decade.

First, a copy of a document is totally inadequate. TOTALLY. The original needs to be examined.

Second, the entire field of non-forensic handwriting analysis is questionable. I once cross-examined a well-known non-forensic handwriting analysis expert who testified that the signature and handwriting on a document was my client’s (who denied it). I took another document, which I knew but the expert didn’t know was authored by the branch manager, and covered up most of the document to show only certain writing that (to my eye) looked like the customer’s. The expert testified that the handwriting was consistent with the customer’s handwriting. I then removed the post-its covering the rest of the document to reveal that it was from the branch manager (consistent with our belief someone at the branch forged the signature and writing). That expert left with her tail between her legs.

Third, the FBI and people trained by the FBI and other law enforcement labs know how to do it right, and it’s all about forensics. Inks can be tested and time dated, pressure marks can be measured, and there are a slew of forensic imaging and other tools that can be used. I’d trust such an analysis far more that an “it looks similar” analysis.

Fourth, the entire field of non-forensic handwriting analysis is questionable. But I repeat myself. For a reason.

Guilt or innocence matters here, particularly since the charges came so close to the election. Trial by Twitter, however, is no way to determine guilt or innocence.

UPDATE: The handwritten note is disputed by Moore’s attorney’s based on non-forensic handwriting analysis.

Judge Roy Moore initiates first legal action against media for defamation, starting with local outlet Alabama Media Group.UPDATE….similar version of this letter also sent to Washington Post.

Posted by Steve Deace on Tuesday, November 14, 2017

[Featured Image: Montage of Images posted on Twitter]


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