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Legal Analysis

Even If Moore Wins, Senate Can Just Kick Him Out

The allegations leveled against Roy Moore in a Washington Post article last week have left the upcoming special election for the vacant Senate seat from Alabama mired in controversy. Moore is accused of having relationships with multiple teenage women in the past, including sexual contact with a girl who was 14 at the time, while Moore was 32. Some Republicans have called for Moore to drop out of the race even though he had been considered a favorite, although a recent poll showed Democrat Doug Jones with a slight lead. This late in the game, however, Moore’s name would likely stay on the ballot even if he dropped out. If he wins, however, there may still be a way to keep him from representing Alabama for long.

Under Article 1, Section 5 of the Constitution, each house of Congress can expel one of their members if they get a two thirds vote. “If enough evidence accumulates, and if Moore does win the election, the Senate has wide discretion in expelling members,” Cornell Law School Professor William Jacobson wrote in a recent blog post on the subject. Prof. Jacobson said that if Moore were to be elected, the Senate could bring the matter to a vote, and provide testimony and other evidence before determining whether to remove him from his post.

A 2012 publication from the Congressional Research Service addresses such a situation. It says that while the Constitution doesn’t give specifics as to what grounds warrant expulsion, such actions have generally dealt with issues regarding  “perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position.” Expulsion from the Senate has occurred 15 times in the past, although 14 were during the time of the Civil War and were based on grounds of disloyalty to the Union (one of those was later reversed). The other was even earlier, in 1797, also for disloyalty.

Two members of the House were expelled more recently. In 1980, Rep. Michael Myers (D-Pennsylvania) was expelled after being convicted of bribery and conspiracy, and in 2002, Rep. Jim Traficant (D-Ohio) was booted after he was convicted of conspiracy to commit bribery, obstruction of justice, and other charges.

The allegations against Moore do not involve disloyalty, and he has not been convicted of any crime here (plus the allegations are 40 years old, and thus barred by statutes of limitations), but the article does say that Congress has “broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member.”

Still, while the Senate may have the legal authority to remove a member, the article says that in the past, the House and Senate have been held back by policy issues where voters were aware of past misconduct and elected the official anyway. That could save Moore if he wins, as voters were made aware of the allegations more than a month prior to the election, which is scheduled for December 12. However, the story broke after Moore’s victory in the primary over Luther Strange. Republicans could argue that had they had the information at the time, they would not have voted for Moore to be their party’s candidate.

Ronn Blitzer is the Senior Editor of LawAndCrime.com and a former New York City prosecutor.

[Image via NBC screengrab]

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