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

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

The allegations against Roy Moore as detailed in a Washington Post story on November 9 are serious, and should be taken seriously. Because the allegations involve events from 40 years ago, there is a distinct possibility that voters may be skeptical enough of the allegations to elect Moore nonetheless.

That could provide the Senate with the choice of invoking Article I, Section 5, clause 2, of the Constitution that gives each House of Congress the power to “expel” members. Let’s hope it doesn’t come to that, and that enough evidence emerges before the election to make clear who is and who is not telling the truth.

The claims fall into two categories, one of which is criminal, the other of which is creepy but not criminal.

The most serious accusation, and the headline of the WaPo story, concern Moore’s alleged conduct when he was 32-years-old towards a then 14-year-old girl, identified as Leigh Corfman, who was below the legal age of consent. That conduct is alleged by Corfman to have involved sexual contact which, because of her age, was illegal.

It’s a serious accusation that the WaPo article treats seriously and in detail. The WaPo article, however, does not provide a lot of other contemporaneous confirming reporting, except that Corfman mentioned to two friends at the time that she was “seeing an older man” identified as Moore. WaPo does not say that the allegations in the article about sexual contact were mentioned to those friends at the time, though one of them remembered Corfman stating that Moore was in “tight white underwear.” WaPo also says that Corfman told her mother “about the encounter” a decade later.

The other corroborating reporting does not concern Corfman directly, but focuses on three other teenagers Moore allegedly dated when he was in his early 30s. This reporting is meant to establish a pattern that at least indirectly support’s Corfman’s account.

The three women say that Moore dated them to varying degrees when they were “between the ages of 16 and 18,” which was at or above the legal age of consent. There is no accusation of any type of sexual contact or any relationship beyond kissing. It’s creepy, and rightly would enter into the equation of how a voter views a candidate, just as lawful sexual activities of candidates have been brought up in campaigns. But it wasn’t illegal, and it’s in a completely different category than the most serious accusation regarding the 14-year-old.

WaPo says it interviewed “more than 30 people who said they knew Moore between 1977 and 1982,” for the story, which is being taken by numerous Twitter pundits as being 30 people confirming the allegations of Corfman. But that’s not what WaPo says.

Moore adamantly denies the allegation regarding the 14-year-old. He’s a little fuzzy on the subject of having dated teenagers, but insists that nothing improper ever happened.

The WaPo story ran just over a month before the December 12 special election, and just over a month after the deadline to change the ballot for the special election. The timing is being used by Moore as part of his response, arguing that it’s all too suspicious that 40-year-old accusations are being aired for the first time so close to the election. According to WaPo, Moore’s campaign asserted that “if the allegations were true they would have surfaced during his previous campaigns.”

I certainly could understand why a childhood victim of sexual assault would not go public with the accusations against a powerful politician; so while I understand why Moore would use the timing in his defense, it’s not dispositive in my mind. The timing, nonetheless, is important because of the close proximity to the special election. It’s too late for Republican primary voters to change their minds, and certainly it would have been better if the allegations were made earlier this year.

The WaPo article does not say how WaPo found these specific women, it only says it heard general rumors: “While reporting a story in Alabama about supporters of Moore’s Senate campaign, a Post reporter heard that Moore allegedly had sought relationships with teenage girls. Over the ensuing three weeks, two Post reporters contacted and interviewed the four women.” Alabama is a pretty big state, it would be interesting to know how WaPo identified four women out of millions for a story that has not been uncovered by any of Moore’s many prior political opponents.

Almost instantaneously, after the WaPo story was published, there were demands that Moore step down from the race immediately, including from John McCain, based solely on the WaPo article.

The allegations against Roy Moore are deeply disturbing and disqualifying. He should immediately step aside and allow the people of Alabama to elect a candidate they can be proud of.

— John McCain (@SenJohnMcCain) November 9, 2017

That’s interesting because McCain himself was the subject of a detailed NY Times story during the 2008 election cycle about an extramarital affair that would have been politically damaging. The story turned out to be false. McCain needed time to mount his response to the NY Times story, but didn’t want to give Moore any time to mount his response before demanding withdrawal.

Others similarly jumped forward with demands without giving the allegations and denials time to play out. Mitt Romney tweeted that he believed Corfman, but the only account (so far) of what Corfman says was in the WaPo article.

Innocent until proven guilty is for criminal convictions, not elections. I believe Leigh Corfman. Her account is too serious to ignore. Moore is unfit for office and should step aside.

— Mitt Romney (@MittRomney) November 10, 2017

WaPo necessarily filtered the interview (it says it interviewed Corfman 6 times) for its reporting. I assume that at some point between now and the special election Corfman will appear on 60 Minutes or some similar program to tell her story, and at that time we’ll hear her story, not just the WaPo reporting on her story.

I’m becoming more and more convinced that Twitter is poison hemlock in an already poisonous political culture. On Twitter, Democrats and journalists predictably are seizing on the Moore accusations. I don’t blame them. Anti-Trump Republicans/conservatives are blaming Trump for the Moore nomination, even though Trump backed Luther Strange, and are generally falling all over themselves to out-virtue-signal each other and to excoriate Trump supporters.

Those backing Moore must now oppose him or bear responsibility for him. @SenMikeLee @JohnCornyn @tedcruz @DrRandPaul https://t.co/gDsFqczLfG

— Evan McMullin (@Evan_McMullin) November 9, 2017

Republican politicians fall into two categories: Moore should step down if the allegations “are true,” and Moore should step down regardless of whether the accusations are true because the accusations are serious. The seriousness of accusations, rather than the evidence of the seriousness of accusations, seems like an unsound basis to overrule the will of the voters.

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.

Let’s hope it doesn’t come to that. Let’s hope that more evidence comes out that sheds light on who is telling the truth, and that it comes out before the election.

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