Fasten your seatbelts. If all the relevant actors are guided primarily by their political self-interest, Roy Moore is headed for the U.S. Senate. And if that happens, we are in for a major national fight about expelling him from his seat, which could function as a partial preview of an impeachment trial of President Donald Trump.
The logic behind this analysis is that Moore will almost certainly be elected in Alabama’s special election next month. It’s effectively too late for Republicans to stage a write-in campaign against him even if they wanted to try.
Moore has now been named by five women, each offering variations on the theme of a grown man making sexual advances on teenagers. Moore has flatly denied the most damning allegations, specifically of sexual assaults on a 14-year-old and a 16-year-old.
This strategy of deny, deny, deny is powerful evidence that Moore isn’t planning to step away from the election. If more similar allegations emerge, his incentives would not substantially change. Many people already take the allegations to be true, among them Senate Majority Leader Mitch McConnell, R-Ky., who said Monday, “I believe the women.”
Moore’s capacity to deny therefore rests on the reality that for now, it’s his word against the women’s — and the recognition that his denial may be enough for many Republicans to vote for him anyway, given the lack of alternatives. The upshot is that, absent some different form of evidence, he’s going to continue to tough it out.
Given the situation, there’s not much the Republican Party can do, either nationally or locally, to stop Moore from getting elected. The special election is scheduled for Dec. 12, and mail-in ballots are already in motion.
Proposing an alternative write-in candidate would be extraordinarily risky for Republicans. Even assuming most Republican voters would be willing to accept the substitute, there is a danger to the party that there would be enough confusion or objection to split the Republican vote and elect Democrat Doug Jones. That’s simply too great a risk for Republicans to take with the Senate so close to parity. If Moore is elected, that will be embarrassing. But they will still have the options of trying to force his resignation or expelling him from the Senate. Jones, on the other hand, would be in office until January 2021, and there would be nothing they could do about it.
The idea of proposing Attorney General Jeff Sessions — whose old Senate seat is at issue — isn’t much of a solution. Sure, Sessions is popular in Alabama, and certainly has name recognition. Unlike Luther Strange, who was appointed to temporarily fill the seat, he wasn’t actively rejected by the voters. And there have been repeated rumblings that Trump would like to replace him.
But finding a substitute attorney general and getting that person confirmed would cost Trump significant political capital. Sessions himself seems to think that Trump won’t fire him outright; as long as that is the case, he would clearly rather stay attorney general, having left the Senate to take that job in the first place.
Even if Sessions would run as a write-in, say after being ordered to by Trump, there is still a chance that some or even many Alabama Republicans would go into the privacy of the ballot booth and vote for Moore to make a statement. That could lead to Sessions’s defeat and Jones’s election, the Republicans’ nightmare scenario.
Once Moore is elected, the Senate has to seat him. A classic 1969 case Supreme Court, Powell v. McCormack, says Congress doesn’t have discretion to exclude a member who is elected and meets the legal criteria.
But the Senate does have the power to remove members by two-thirds vote under the so-called expulsion clause of the Constitution.
The trouble for Republicans is that, given everything we know about Moore, he won’t go down without a fight. He will almost certainly continue to deny the allegations, and if he is innocent, as he claims, why shouldn’t he serve?
The Constitution’s expulsion clause doesn’t specify a procedure for removal or the grounds for doing so. Precedent doesn’t help very much. No senator has been expelled since the Civil War, when several were kicked out for supporting the Confederacy. A good number have resigned after expulsion proceedings were commenced, but others have been cleared by the Senate.
Effectively, the Senate would have to hold trial-like hearings before expelling Moore. These hearings might last a long time — because they would implicate not only Moore but also this post-Harvey Weinstein cultural moment.
Such extended hearings on matters of national interest aren’t unthinkable. Between 1901 and 1907, the Senate considered the expulsion of Utah Republican Reed Smoot, who was an apostle of The Church of Jesus Christ of Latter-day Saints. The actual hearings lasted four years. A terrific book by the historian Kathleen Flake details the proceedings, which involved allegations of polygamy and a full-blown investigation of Mormonism.
Small wonder that some Republicans seem worried about the prospect. Yet at the same time the cost of keeping Moore in place could also be devastating, because every Republican could be accused of caucusing with a pedophile.
The most likely result would be a public fight, in which the Senate would end up debating not only Moore’s guilt or innocence but also the moving target of standards of proof and what counts as wrongful behavior sufficient to deserve expulsion.
That’s roughly what a Trump impeachment trial in the Senate would probably look like, with extensive debate about the meaning of high crimes and misdemeanors. The prospects of such a Trump trial are still in the distance. But the specter of a Moore trial is looming larger at every moment.
Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
