This post may be rendered moot tomorrow, but if Roy Moore is elected the issue of whether he should be expelled from the Senate will arise. On that point, I want to note that there is considerable authority to say he cannot be expelled for his alleged sexual misconduct.
The principle, enunciated many times in Congress, is that a member may only be expelled for something that occurred while he or she was a member in that Congress. Thus, conduct that occurred prior to an election cannot be the basis for an expulsion unless that conduct leads to a criminal conviction during that Congress. (In other words, if Congressman X is convicted for taking bribes five years ago, that conviction can serve as a basis for expulsion even though the bribes were taken prior to that Congress. But Congressman X cannot be expelled just because he took bribes five years earlier.)
In his last speech to the House of Representatives, John Bingham took the position that I am describing and defended the view that the House could not expel a member for alleged misconduct that occurred prior to that Congress. (He was speaking about proposed sanctions for certain members caught up in the Credit Mobilier scandal. The members were instead censured.) In Powell v. McCormack, the Supreme Court reviewed this point and stated: “The House’s own manual of procedure applicable in the 90th Congress states that “both Houses have distrusted their power to punish in such cases.”
Now I’m not saying that there would be judicial review of a decision to break with precedent and expel a Senator Moore. I’m simply saying that the traditions of both Houses hold that they lack such a power under Article I, Section 5 of the Constitution because Moore’s alleged wrongs occurred long ago.