Order In the Court of Public Outrage

Senate candidate Roy Moore (R-Alabama)

I mostly applaud the recent shakeout of sexual harassers in public places. Since Hollywood’s casting couch horror stories and Washington’s power-mad gropers have long been an open secret, it pleases me to see somebody finally being held to account. But I fear, in the last week or so, we’re seeing something I never anticipated from this scandal: the court of public opinion is massively overruling due process.

Okay, some powerful people probably deserve to have their careers torpedoed by what’s happening. Louis CK’s frank confession to past sexual misbehavior, and the mumbling non-denials out of Kevin Spacey and Harvey Weinstein, have brought their recent ostracism on themselves. Frankly, Louis CK deserves credit for having balls enough to admit his past crimes, even as he deserves the ass-beating he’s now getting in the media.

But a different dynamic plays out in the cases of Roy Moore and Al Franken. These politicians both deny, to greater or lesser degrees, the accusations against them, but they’re both being treated as guilty. Calls for Moore to quit his Senate race, and for Franken to quit the Senate, have fallen out, not necessarily along partisan lines, but certainly according to group loyalties. Still, neither has confessed to, nor been convicted of, anything. Yet.

Maybe they should be. Moore has five accusers (that I know of), and they tell remarkably similar stories: targeting minors less than half his age, touching them without consent, then using his elected authority to demand their silence. Franken has one accuser, whose charges date back to when he was a comedian, and unlike Moore’s accusers, she has photographs. If he got caught on camera once, it probably happened other times, when cameras weren’t present.

Both deny their charges. Moore does so categorically, saying all his accusers are lying. Franken dismisses his accusations as a joke which fell flat. (I never liked him on SNL anyway; his Stuart Smalley character, in particular, was an unfunny slam on homosexuals and treatment seekers alike.) Moore has demanded proper legal charges be filed, knowing they can’t at this late date. Franken has submitted to an ethics committee investigation, like he had any choice.

Senator Al Franken (D-Minnesota)

The fallout has been downright predictable. Moore’s evangelical Christian supporters invent stupid excuses for his behavior, though he’s slipped into second place. Senate Majority Leader Mitch McConnell, and his colleagues, say they believe Moore’s accusers, though they continue mush-mouthing their responses to President Trump’s more numerous accusers. Senator Cory Gardner has suggested the Senate won't let Moore get seated, which would be unprecedented.

Congress has literally never preemptively prevented a legally elected member from being seated. It has very rarely even expelled a sitting member, and other than seventeen members expelled when their states joined the Confederacy, it has only happened when convicted of very serious charges. Congress expelled William Blount in 1797 for treason, and Michael Myers in 1980 and James Traficant in 2002, both for bribery and other financial malfeasance.

Meanwhile, the breakdown among progressives on Senator Franken is stark. Democratic Party loyalists praise his “leadership” for not impugning his accuser, and submitting to ethics inquiries. But people more loyal to principles than party began tweeting demands for his resignation within hours of the accusation. Unfortunately, this opens other terrible doors: if one single accuser requires resignation, could anybody accuse anyone of anything?

In both cases, well-meaning but misguided advocates clearly haven’t thought the implications through. If Republicans prevent Moore taking his seat, they’ll have to explain why they won’t hold Trump equally accountable; more likely, they’ll crumble as they did with Trump. And if Franken gets pressured into resigning without a hearing, it sets a precedent existing Senators won’t like (his accuser is a sometime paid Hannity commentator).

The Senate, and America, must hold both men culpable for their actions. Both should receive hearings, or face consequences if they refuse. But the Senate is a deliberative body, which exists to test ideas through open debate before foisting them onto the public. Sure, letting a seriously suspected sexual predator decide our laws has harrowing implications. But they gave Bob Packwood a fair hearing, and they had his confession on tape.

These charges are serious. Our lawmakers need to hear the accusers, and hold their peers accountable. But I fear we’re starting to see the ramifications of public outrage: moral panic, where accusations matter more than evidence. From Salem witch trials to the McMartin Preschool Trial, that never ends well. In times like these, we need due process more than ever.