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The Senate probably can’t stop Moore if he wins the election

By Brandon Moseley
Alabama Political Reporter

Sunday, November 19, 2017, when the Washington Post first broke the story about women coming forward with accusations against Republican Senate candidate Judge Roy Moore from decades ago, many in the Washington establishment, including Moore nemesis Senate Majority Leader Mitch McConnell, R-Kentucky, and National Republican Senate Leadership Committee Chairman Senate Cory Gardner, R-Colorado, suggested that Judge Moore if elected would not be seated in the Senate and if seated he would be expelled.  Those bold claims are starting to unravel as cooler heads look at what the actual law says.

The U.S. Constitution says, “No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

Moore meets all those requirements and the Constitution does not say anything about the Senate being able to set additional requirements on who the states can select to be their Senator.  Moore has never been convicted of anything and the accusations against him are already known by the voters.

While Moore may be wildly despised by both Establishment Republicans and the Democrats; being unpopular is not a reason to prevent Moore from being seated in the Senate.  Whatever Moore is accused of in the Gadsden dating scene of 1977 to 1979, that is in the distant past and likely not something that the Senate can expel him for, as he was not a U.S. Senator then.

U.S. Senator Susan Collins, R-Maine, told reporters on Capitol Hill that she has studied the law, and that “we would have no choice but to seat him” if he defeats Doug Jones (D) in the special election next month, according to a tweet from NBC’s Frank Thorp.

Worse for Moore opponents, the U.S. Supreme Court has already ruled on this.

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New Yorker Adam Clayton Powell Jr. was elected to the Congress. “Powell was denied his seat by the adoption of House Resolution No. 278 which the Speaker had ruled was on the issue of excluding Powell and could be decided by majority vote. The House’s action followed charges that Powell had misappropriated public funds and abused the process of the New York courts. Powell and certain voters of his congressional district thereafter brought suit in the District Court for injunctive, mandatory, and declaratory relief against respondents, certain named House members, the Speaker, Clerk, Sergeant at Arms, and Doorkeeper of the House, alleging that the Resolution barring his seating violated Art. I, § 2, cl. 1, of the Constitution as contrary to the mandate that House members be elected by the people of each State, and cl. 2, which sets forth the qualifications for membership of age, citizenship, and residence (all concededly met by Powell), which they claimed were exclusive.”  The Warren Court unanimously wrote that, “Considering Article I, Section 5 of the Constitution, as well as the history surrounding it, the House of Representatives cannot exclude a duly elected official from participation. This interferes with the right of the people to choose their own representative, assuming that this representative meets the age, citizenship, and residence requirements provided by the Constitution.”

The only way to expel a member is by a two-thirds majority vote and that has to go through all the due process of Senate rules.  The Ethics Committee is already hearing the case of Senator Bob Menedez, D-New Jersey, whom the FBI and U.S. Attorney have accused of taking bribes, including junkets to the Dominican Republic, allegedly including junkets involving underage prostitutes.  Menendez was recently on trial; but the trial ended in mistrial when the jury deadlocked on every count.  The Committee may also have to consider the case of Senator Al Franken, D-Minnesota, who has been accused of groping a sleeping woman while on a USO trip (there is photographic evidence corroborating the claim).

One senior Republican senator on Thursday told ‘The Hill” that voting to expel Moore would be a mistake, given that the voters of Alabama are already aware of the allegations against him.

“Who are we to expel someone who is duly elected by the voters? It raises constitutional issues,” the lawmaker said.

Stanley Brand, an expert in congressional ethics investigations, told ‘The Hill’ that a vote to expel Moore could run afoul of the 1969 Supreme Court Powell v. McCormack ruling, because Moore’s alleged misconduct took place before the election and was known to voters.

“If the electorate votes for that member notwithstanding the conduct, the presumption is they’ve condoned or pardoned the conduct,” Brand said.  “You can’t refuse to seat a member who possesses those qualifications (in the Constitution). That leaves open the issue of whether you could expel that member,” Brand said.

“If he’s elected by the people of Alabama, the presumption is they knew about the conduct and elected him notwithstanding,” he added. “They’re in a tough position in that they’re sailing into the teeth of a very tough Supreme Court precedent if they try to exclude or expel this guy.”

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The Alabama Republican Party Steering Committee ignored tremendous pressure from Establishment Republicans in Washington D.C. to decertify Moore as the Republican candidate.

Moore faces Clinton era U.S. Attorney Doug Jones (D) in the December 12, 2017 special election.


Original reporting from The Hill’s Alexander Bolton contributed to this report.


Brandon Moseley is a former reporter at the Alabama Political Reporter.

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