Is an ethics investigation of Franken a good idea?

I won’t shed any tears if, as a result of Leeann Tweeden’s revelations, Al Franken is investigated by the Senate Ethics Committee for sexual misconduct. However, I don’t believe the Ethics Committee should investigate such allegations when, as in Franken’s case, the conduct occurred before the miscreant became a member of Congress — unless it involves a felony.

I can be persuaded either way on the fairness and appropriateness of investigating non-felonious pre-congressional behavior. It’s pragmatic concerns that sway me.

I assume that more than a few members of Congress engaged in conduct similar to Franken’s at some time in their life. I also assume that some members who didn’t will nonetheless be accused, in the post-Weinstein environment, of such behavior, especially if making the accusation can lead to punishment by the Senate. The prospect of an investigation weaponizes such charges.

Is the Ethics Committee prepared for a stream of investigations of “he says, she says” disputes? Does it serve the national interest to conduct them?

I imagine the Ethics Committee will have its hands full investigating conduct by members that post-dates their entry to Congress. For example, now that the Menendez case has ended in a mistrial, I assume the Senate will investigate the Senator. The fact that the criminal charges were not established beyond a reasonable doubt to the satisfaction of the New Jersey jury will not preclude an ethics investigation. Nor would the argument that, under the Supreme Court’s decision in Robert McDonnell’s case, Menendez’s conduct, though shady, wasn’t criminal.

An ethics investigation of Menendez should encompass the charges brought against Menendez by the Justice Department, but should not be limited to them. There are allegations of serious misconduct that weren’t charged and that the judge did not allow the jurors to hear about.

Of particular relevance to this discussion are claims (apparently corroborated) that Menendez, while a Senator, engaged in sex with underage prostitutes in the Dominican Republic. The prostitutes allegedly were hired and flown to the DR by Menendez’s co-defendant, Salomon Melgen, the man accused of bribing the New Jersey Senator.

The trial judge would not let the jury hear these allegations in the criminal case. However, the matter is one the Senate should hear about and evaluate.

Whether it should hear about and evaluate claims of groping and alike that occurred before the member entered Congress is another question. I think the answer is no.

There is another way to look at a referral to the Ethics Committee, namely that the matter is being sent there to die. The Committee’s past performance might justify that view.

However, I’m not sure this ploy will work now with sex harassment claims. I think if these claims are referred for investigation, a serious investigation will have to occur.

In Franken’s case, I’m not sure what there is to investigate. The picture tells the story. Some will see it as requiring Franken’s expulsion from the Senate; others won’t.

The Senate could probe the skit Franken wrote and rehearsed on with Tweeden. There seems to be a difference of memory about that, with Tweeden saying that Franken forced his tongue into her mouth during a kissing scene. To me, though, this seems like a waste of time and resources.

Surely, there are more important ethics issues to investigate than a skit written and rehearsed by a guy who wasn’t in the Senate at the time.


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