Should Franken be expelled from the Senate?

In the years since feminists excused Bill Clinton’s misdeeds, sexual harassment by powerful men has too often gone unreported and, when reported, has not been taken seriously enough. Now, the pendulum may be swinging the other way. We may be headed for an over-correction, at least for a while.

If so, I’m going to dissent now, while a Senator I abhor is in the dock.

Al Franken should not be expelled from the Senate based on the evidence that has come out so far. We know that Franken touched, with multiple fingers of both hands, the breast of Leeann Tweeden while she was asleep. We can be pretty confident that, in addition, he forced his tongue into her mouth when they were rehearsing a skit. (Franken has issued a vague denial, but hasn’t presented a conflicting account of what happened.) We also know that Franken did these things to Tweeden before he was elected to the Senate.

As a starting point of our analysis, let’s ask what punishment likely would be handed out to an employee who did these things to a co-worker at, say, a company retreat (fertile ground for harassment and harassment claims). I don’t know the answer as of today because I have been out of the employment law business for a while.

However, five or ten years ago, companies conscientious about protecting women from sexual harassment and following “best practices” were unlikely to fire a first time offender for this conduct. That was especially true if the victim did not seek this remedy. Tweeden says she’s is not calling for Franken’s expulsion.

What punishment would the harasser suffer? He probably would be warned that any further harassment would (or could) result in being fired. He might be suspended for a short time without pay. If the victim requested, he probably would be placed in a position where the two no longer had regular contact. But he wouldn’t be fired.

Al Franken is a U.S. Senator, not a sales manager. We have the right (however unrealistic) to hold members of Congress to a higher standard. But remember, Franken was not a Senator when he improperly touched Leeann Tweeden.

Remember too that Franken is not an employee of the Senate. Congress didn’t hire Franken, the people of Minnesota did. It’s true (though irrelevant, I think, for purposes of this discussion) that the “hiring” was the product of voting fraud. But Minnesotans “rehired” Franken in 2014 by a substantial margin.

Expelling Franken would overturn the will of Minnesota voters. I don’t believe this should happen where the harassment in question likely would not get an ordinary employee fired. This seems especially true because Franken wasn’t a Senator when he committed his misdeeds against Tweeden.

A second consideration also militates against expelling Franken. Doing so would create a precedent that could lead to mass expulsions and blackmail. I don’t know what percentage of current U.S. Senators have, at some time in their adult life, touched a woman’s breast against her will, but I’d be surprised if the number is small.

Do we want to set a precedent whereby all of these Senators can be subject to expulsion or expulsion proceedings? I don’t.

And what about Senators who have never engaged in sexual harassment? They can be accused too, and might well be by, or at the behest of, their political enemies. Do we want them to be subject to expulsion proceedings and to the risk of expulsion if the evidence is not correctly evaluated? I don’t.

Expulsion for sexual harassment also presents the risk of blackmail. Senators can be threatened with the disclosure of misdeeds and told to take a certain action or vote a certain way, or else. Our intelligence agencies may have information about a Senator or Representative’s past sexual behavior that they could threaten him with.

For these reasons, I don’t believe the Senate should even consider expelling Franken. I should add that I doubt the Senate is seriously considering this. I believe that talk of expulsion in the Senate represents posturing and positioning (with Roy Moore in mind). That’s probably also true of much of what feminists are saying.

Finally, to be clear, I’m not saying there is no pre-Senate sexual misconduct that would justify expelling a Senator. A rape, even if committed before election to the Senate, would present a strong case for expulsion. So would sexual abuse of a child. But Franken’s conduct doesn’t come close to this level.

Andy McCarthy says the picture of Franken touching Tweeden’s covered (by a jacket) breasts depicts a felony sexual assault under federal law. I don’t question Andy’s legal analysis. But has anyone every been convicted of a felony under federal law merely for intentionally touching (with no evidence of more) a covered female breast?

I hope not. Such a conviction would be a travesty. The Senate’s handling of Franken’s case should not be informed by this blatant example of over-criminalization.

Let’s leave it to the people of Minnesota to “expel” Franken (or not) in the next election.


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