One of the advantages of writing this scruffy little blog, compared with, say, being a “journalist,” is I am not generally off in mad pursuit of deadlines. I can take the time to sample the wares of journalists, do a bit of more in-depth research, actually think, and eventually produce an opinion piece on issues of interest. One recent cogitation regarded the forty-year-old accusations against Judge Roy Moore surfacing in The Washington Post—the scourge of Republicans everywhere—just before an election. Let us, gentle readers, consider the matter together with the help of the invaluable Prof. Jacobson at Legal Insurrection:
The allegations against Roy Moore as detailed in a Washington Post story on November 9 are serious, and should be taken seriously. Because the allegations involve events from 40 years ago, there is a distinct possibility that voters may be skeptical enough of the allegations to elect Moore nonetheless.
That could provide the Senate with the choice of invoking Article I, Section 5, clause 2, of the Constitution that gives each House of Congress the power to ‘expel’ members. Let’s hope it doesn’t come to that, and that enough evidence emerges before the election to make clear who is and who is not telling the truth.
The claims fall into two categories, one of which is criminal, the other of which is creepy but not criminal.
The most serious accusation, and the headline of the WaPo story, concern Moore’s alleged conduct when he was 32-years-old towards a then 14-year-old girl, identified as Leigh Corfman, who was below the legal age of consent. That conduct is alleged by Corfman to have involved sexual contact which, because of her age, was illegal.
It’s a serious accusation that the WaPo article treats seriously and in detail. The WaPo article, however, does not provide a lot of other contemporaneous confirming reporting, except that Corfman mentioned to two friends at the time that she was ‘seeing an older man’ identified as Moore. WaPo does not say that the allegations in the article about sexual contact were mentioned to those friends at the time, though one of them remembered Corfman stating that Moore was in ‘tight white underwear.’ WaPo also says that Corfman told her mother ‘about the encounter’ a decade later.
The other corroborating reporting does not concern Corfman directly, but focuses on three other teenagers Moore allegedly dated when he was in his early 30s. This reporting is meant to establish a pattern that at least indirectly support’s Corfman’s account.
The three women say that Moore dated them to varying degrees when they were ‘between the ages of 16 and 18,’ which was at or above the legal age of consent. There is no accusation of any type of sexual contact or any relationship beyond kissing. It’s creepy, and rightly would enter into the equation of how a voter views a candidate, just as lawful sexual activities of candidates have been brought up in campaigns. But it wasn’t illegal, and it’s in a completely different category than the most serious accusation regarding the 14-year-old.
Before we consider the relevant facts, full disclosure: I’ve always considered Judge Moore a political grandstander, even a bit of a crank. His crusade over a Ten Commandments display eventually led to his expulsion from the Alabama Supreme Court, and rightly so. Regardless of one’s political views, taking the oath as a judge requires adherence to the rule of law, an oath Moore willingly and gleefully violated. Judges cannot confuse the judicial, political and popular, pushing whatever domain is temporarily useful to the forefront of debate, which is what Moore did.
Let us now, gentle readers, return to the mid to late 1970s. It was a very different time in America. The Cold War was still raging. Cassette tapes were the primary recording medium. Compact Discs were still in the future (1982). The first mobile phone call wasn’t made until 1973, and the first true smartphone wasn’t released until 1992. By contemporary standards, it was quite dumb. It wasn’t until 1977 that the first VHS player/recorders were released. They were expensive, huge and heavy beasts with remote controls on long wires. I had one, a JVC. In that year, the first episode of the Star Wars universe was released, as was Close Encounters of the Third Kind and Saturday Night Fever.
Let us also consider one particularly pertinent fact: southern society of the time had a much more relaxed view of age-difference relationships than we do circa 2017. While a great many Americans would generally agree with Prof. Jacobson’s characterization of the alleged relationship between Moore and the then 14-year-old Corfman as “creepy,” at the time, many in Alabama would not have shared that belief. This, of course, does not excuse illegal behavior—if such ever occurred.
As expected, Republicans in name only, including Mitch McConnell, have piled on, demanding Moore drop out of the race, many citing as justification, “because the charges are serious.”
Another factor, to which the Professor, and others, have alluded, is “innocent until proved guilty” is applicable only in criminal trials, not the arena of politics.
This is true, as far as it goes, and it does not go very far at all. There are very good reasons there are statutes of limitations for most crimes. Take, for example, an accusation made against me during my police days. I worked for a police chief for whom the wearing of hideous police hats was more important than life itself. I have a very large head, and my hat was a perfect airfoil, often requiring me to chase the damned thing down the street. As a result, I wore it as little as possible.
One day, my shift supervisor told me a higher ranking officer complained that while driving about one day three months earlier, he saw me conducting a traffic stop without wearing a hat. Ultimately, the complaint was dropped, not only because our rules actually made hat wearing optional, but because all realized a three month old complaint made it impossible for me to defend myself. It could have been windy that day, and a bit of research proved it actually was. I certainly couldn’t remember such details, nor could my supervisors.
In criminal matters, as time passes, memories fail or are influenced in subtle and gross ways, witnesses move away or die, evidence deteriorates, is destroyed or otherwise lost. Prosecutions of that sort make it virtually impossible for the accused to defend himself, and are a fundamental violation of the principles of the rule of law/justice.
Senator McCain and Mr. Romney, among others, would argue that since the innocence principle doesn’t apply, all are not only free to convict Moore in the court of public opinion, they must, because, well, just because! This is particularly interesting in McCain’s case. During his abortive run for the presidency, The New York Times accused him of having an affair. At the time, I defended him for the same reasons I find myself defending Moore. By McCain’s current, self-righteous standard, he should have immediately withdrawn—after all, it was a serious, disturbing, accusation. Of course, he did not withdraw, which only prolonged the process of his defeat.
One should be appropriately skeptical of The Wapo’s story for a variety of very good reasons:
1) It was published by The Washington Post, a former newspaper intensely biased about, and hostile toward, all non-progressives.
2) It was published after the deadline for changing the Alabama ballot for the upcoming special election, but before the actual election, a publication date obviously calculated to do maximum damage to Moore, while helping Democrats in their quest to retake the Senate majority–an amazing coincidence.
3) Establishment Republicans hate Moore and will do anything to be rid of him. They are already speaking of denying him a seat in the Senate, overthrowing the will of Alabama voters, should he be elected.
4) Of the several accusations against Moore, only one—the Corfman accusation—had the potential to be unlawful (and possibly the most recent accusation)—if it ever occurred. The others would merely fall under the professor’s “creepy” designation. It is also interesting to note that Corfman’s accusation is probably the weakest accusation with the least objective proof.
5) The accusations were made only after about 40 years. Judge Moore has been a major political figure in Alabama for most of those 40 years. That these accusations would be made now is the worst kind of suspicious coincidence. Claiming various fears for not complaining years ago is convincing to progressives, victim and identity politics cranks, and opportunistic establishment Republicans, but should not be convincing to rational Americans. If the women allegedly involved were worried for their social status and personal safety, it makes sense to complain only when the political stakes are highest, when the danger to reputation and limb are theoretically most acute, or when the offices sought are much less consequential?
6) Cries of “the women must always be believed,” are based on the assertion that women never lie about such things. As I’ve repeatedly written, based on many years of experience in police work, women most certainly do lie about rape and every other crime known to man. They lie for all the reasons everyone lies, and as willingly. They particularly lie about politics. Take Hillary Clinton, for example (but that’s a book—or ten), and Donna Brazile who brazenly, and with great indignation, lied about giving debate questions from CNN to Clinton, and eventually admitted it. Suggesting that one should believe accusations, particularly 40 year-old accusations for which there is no real evidence can be reasonably believed to have ulterior motives, or to be uncommonly gullible.
Does all of this means the women involved, including a more recent one that made a claim that may or may not have amounted to an attempted rape, are lying for political, or other reasons. Not necessarily. Apparently Judge Moore has confirmed dating, to at least some small degree, the women who were in their later teens at the time, such dating supposedly confined to kissing. He has denied the alleged contact with Corfman and the more recent woman. If what he has admitted were disqualifying, what do we make of Bill Clinton and his many contemporary rides on the Lolita Express? What do we make of the past “Lion of the Senate,” Ted Kennedy whose drunken dalliances and grotesquely crude harassment of women was the stuff of legend—and revulsion? What do we make of JFK, and a wide variety of other politicians, none of whom their colleagues felt the need to expel to uphold the dignity and rectitude of the United States Congress, or the United States, for that matter. Particularly in the case of the Horndog in Chief and his below desk level Oval Office oral conferences, Democrats exclaimed with indignation that surpassed that of Donna Brazile “it’s just about sex!” They’re not quite saying that now, and better yet, Republicans, forming into their usual circular firing squad, are claiming, without so much as a stained blue dress, accusations are all that matter.
I’m not saying the bad behavior of hypocrisy of others excuses anyone’s bad conduct, but it is noteworthy, particularly when fellow politicians are suddenly, and opportunistically, wrapping themselves in ephemeral virtue.
Professor Jacobson notes:
If enough evidence accumulates, and if Moore does win the election, the Senate has wide discretion in expelling members. Article I, Section 5, clause 2, provides that: ‘Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member.’ The Senate could hold proceedings in which testimony and other evidence is gathered, and could reach a determination.
I’ve found this section of the Constitution particularly ironic of late. I refer specifically to Republicans claiming with mock seriousness and regret they can’t do away with the filibuster, or otherwise override Democrats keeping them from doing all manner of things—repealing Obamacare, confirming judges, replacing progressive bureaucrats in government agencies determined to undermine the Trump Administration and Constitution, etc.–they promised those that elected them they would do, but they really never intended to do in the first place. After all, they only control the entire Congress and the presidency. Who can blame them for being feckless and helpless? But by all means: expel elected senators on the strength of four decade-old, unconfirmed accusations. Establish a precedent Democrats will run with as soon as they’re back in power because congressional Republicans are stupid enough to expel duly elected fellow Republicans before the voters expel them for serial lies and incompetence.
When Democrats lie wounded on the political battlefield, their fellows deny a battle ever took place while they quietly drag the donkey wounded away for treatment. Republicans bayonet their wounded.
Some have even suggested Moore, if elected, should be expelled because he has suggested his biblical beliefs override the Constitution. While this assertion, if indeed he believes it and is willing to act on it is wrong, since when is ignoring the Constitution a disqualification for federal office? How many federal judges decide cases on leftist politics? Why aren’t they impeached? Since when have Democrats, and Republicans, for that matter, shown any great fidelity to their oaths to uphold and defend politically inconvenient parts of the Constitution?
As anyone paying attention has noticed in recent years, it is very easy indeed to make accusations against men, and the deck is very much stacked against them. Educations, jobs, careers, even lives have been lost on the flimsiest accusations, and even on accusations proved to be false. Whether the conduct being alleged is a crime or not, we would be wise to show reasonable skepticism, and perhaps, just perhaps, absent compelling proof, give the benefit of the doubt—and due process, to the accused.
That doesn’t mean we’d want to invite them to supper, but how far do we want to race toward destroying people based on unconfirmed, and unconfirmable, accusations? And who believes if such accusations were made against Mitch McConnell, John McCain, or any other congress critter so anxious to condemn Moore, they would gladly resign without proof, or for most, even with proof? Who thinks they wouldn’t claim something that happened four decades ago irrelevant to their contemporary character and qualifications and their indispensability to the nation?
Didn’t think so.