While the allegations of sexual misconduct and assault against Roy Moore have seriously cast the viability of his Senate candidacy in doubt, some Republicans are now calling for his expulsion if he still wins the Senate race in deep-red Alabama.
“I believe the individuals speaking out against Roy Moore spoke with courage and truth, proving he is unfit to serve in the United States Senate and he should not run for office,” Colorado GOP senator Cory Gardner said in a statement on Monday evening. “If he refuses to withdraw and wins, the Senate should vote to expel him, because he does not meet the ethical and moral requirements of the United States Senate.”
Just how quickly could Moore be expelled? University of Alabama law professor Ronald J. Krotoszynski writes in the New York Times Monday that if Moore wins, the Senate has the power to expel Moore “immediately” because “he lacks the character and fitness to serve.” Each house of Congress has the power to “expel” a member with a two-thirds vote, but it may not exclude someone who is elected and meets the constitutional requirements to serve, as the 1969 Supreme Court case Powell v. McCormack made clear.
Although it’s likely within Congress’s constitutional power to expel a member immediately, a former top lawyer in the Senate says that bypassing existing procedure to expel a member could face a legal challenge and set a bad precedent.
“There are specific proceedings and rights of basically a form of due process that the Senate has set up for Senate members,” says Robert Walker, a former federal prosecutor and who served as chief counsel of the Senate Ethics Committee from 2003 to 2008. The Senate has “a very deliberate, disciplinary process, including rights of confrontation, of witnesses, and rights for a public proceeding.” Under existing rules, the Senate Ethics Committee needs “clear and convincing” evidence in its disciplinary hearings, a lower evidentiary standard than used in criminal proceedings.
“I don’t think it would go unchallenged” in court if the Senate bypassed the existing process, says Walker. “Even in a case like this, before you undermine the decision of the electorate, it seems to me that if you do that without following the process set out in the Senate rules, then the Senate would be opening itself up for a challenge with a fairly strong basis.”
“The courts might be loath to get involved in what they would see as a political matter essentially involving one other branch setting its internal rules of discipline,” says Walker. “The courts might say, ‘The Senate wasn’t fair, but they can do this.’ But it would not be a slam-dunk decision.”
