This piece was first published by The Weekly Standard.
Since the Washington Post published its bombshell report Thursday — in which a woman alleges that Alabama Senate candidate Roy Moore molested her when she was a 14-year-old and Moore was a 32-year-old assistant district attorney — almost all Republican senators and President Trump have said that Moore should drop out of the race if the allegations are true.
It’s very unlikely that Moore will drop out of the race, but even if he wins this election, that will not necessarily settle the matter. According to the U.S. Constitution, “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”
There isn’t any existing rule that would stop the Senate Ethics Committee from investigating the allegations against [Roy] Moore, according to Robert Walker, a former federal prosecutor who served as chief counsel and staff director of the Senate Ethics Committee from 2003-2008.
The committee could not take up the matter until Moore is sworn in, but it has not formally ruled on whether or not it may investigate conduct that occurred before a senator is sworn in.
“Before the Ethics Committee would have jurisdiction, an individual would have to be sworn in to office,” Walker tells The Weekly Standard. “Could the committee look back to conduct that took place before someone was a member of the Senate? Essentially, the committee has left the final resolution of that question open.”
The evidentiary standard used in congressional expulsion hearings is lower than the standard used in criminal court cases. “In the disciplinary process generally, not just at an expulsion hearing, to find that there has been a violation of Senate ethics rules, the evidence has to reach the level of clear and convincing evidence,” says Walker.
What’s the definition of “clear and convincing” evidence? “All I can tell you is that ‘clear and convincing’ evidence is a standard somewhere between ‘probable cause’ and ‘proof beyond a reasonable doubt,'” says Walker. “It’s an evaluation that’s up to the finders of fact in any given matter, and in an ethics matter, that would be the members of the Senate Ethics Committee.” The standard of “clear and convincing” evidence is also a higher standard than “preponderance of evidence.”
“One would have to look at the actual evidence. It takes into account credibility evaluations of the witnesses on both sides. It takes into account other factors that may corroborate what was being said,” says Walker. “If they took a matter up and if there was some discipline that was recommended by the committee, ultimately it would be up to the full Senate not to evaluate whether the conduct occurred, but to evaluate the sanctions. The committee would find whether or not the charges had been proven.”
“There are no Senate disciplinary matters that I’m aware of that involve the kind of allegations that are presently being reported with respect to Mr. Moore,” Walker says. “There’s no direct parallel there in Senate Ethics precedent.”
