Could Roy Moore become the first U.S. senator expelled since the Civil War?

Liz Goodwin
Senior National Affairs Reporter

WASHINGTON — Sen. Cory Gardner, R-Colo., released a statement Monday demanding that Alabama Senate candidate Roy Moore step aside after another woman came forward and said he had assaulted her when she was 16 years old.

Gardner, the head of the Senate’s political fundraising arm, said Moore should be expelled from Congress if Alabama votes him into office Dec. 12 despite two women accusing him of sexually assaulting them when they were minors. Three other teen girls said he pursued a relationship with them when he was in his 30s, the Washington Post reported.

“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,” Gardner said in a statement. The Colorado Republican, who chairs the National Republican Senatorial Committee, had endorsed Moore after he defeated Sen. Luther Strange in a primary.

Senate Majority Leader Mitch McConnell, R-Ky., on Monday also called for Moore to exit the race, saying he believes the women who have accused the former judge of misconduct. A recent poll found that Moore was leading his Democratic challenger Doug Jones by 10 points.

So could Moore be expelled from the Senate if he wins, and what does that entail?

It takes two thirds of the Senate — 67 votes — to expel one of its members, and the body has taken that step just 15 times. Fourteen senators were expelled for supporting the Confederacy during the Civil War, according to the Senate’s historians. William Blount, a Republican from Tennessee, was expelled for conspiring with the British to buy Louisiana to drive up his own land prices in 1798. Blount, a signer of the Constitution, refused to attend his own trial in the Senate chamber.

Sen. Majority Leader Mitch McConnell, left, on allegations against Roy Moore, right: “I believe the women, yes.” (Photo: ABC News)

No senator has been expelled in modern times, in part because those implicated in corruption scandals tend to simply resign before facing the humiliation of an expulsion vote.

If Gardner makes good on his threat to pursue expulsion for Moore and other senators join him, a lengthy ethics investigation would cloud the first few months of Moore’s time in Washington.

Robert Walker, the former chief counsel of the Senate Ethics Committee, said that in Moore’s case, the committee would likely begin to investigate the allegations against Moore and then go through the process of holding hearings, which could take months.

Walker said the ethics committee believes misconduct before a senator is elected is still within its purview for investigation, and age of the decades-old allegations would likely not deter investigators.

“I suspect in this case if there is a proceeding involving Mr. Moore that all sides will want it to be as accelerated as possible consistent with fairness,” Walker said.

After the committee released its findings, the Senate majority leader would then decide whether to hold an expulsion vote.

Though it’s unusual for a senator to be threatened with expulsion before even being elected, it has happened in the past, Walker said. Sen. Roland Burris, who filled Barack Obama’s Senate seat after he was elected president, was threatened with expulsion before he was appointed by Illinois Gov. Rod Blagojevich. Then-Majority Leader Sen. Harry Reid, D-Nev., said he would not seat Burris.

Reid didn’t follow through on the threat, and Burris served out his term despite an ethics investigation during his short time in the Senate.

If Moore is elected and then expelled, he may have a powerful legal argument to make that senators were attempting to deny him his seat entirely, which the Supreme Court has ruled in the past is illegal. A congressman won his case in 1969 after he was expelled from the House for corruption by saying the expulsion vote was an attempt to deny him the seat altogether instead of booting him out for misconduct once he was in office.

Holding hearings and investigating Moore’s alleged misconduct could ward off that argument, however.

“It may be just a matter of checking your boxes and superficial distinctions,” said Adam Winkler, a law professor at UCLA. “They cannot refuse to seat him, but they can expel him on day one.”

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