Al Franken at a Senate Judiciary Committee hearing in March. (Reuters photo: Joshua Roberts)

The Framers did not equate fitness for office with capacity to evade prosecution.

The spirit of the times has opened the floodgates of long-suppressed heartache. Victimized women are thus coming forward a decade or more after being abused by this political don or that show-biz celeb — who, in Al Franken’s case, could be the same guy.

It is vital that we hear their stories. There should be no expectation, though, of a courtroom reckoning. While prosecution is practically impossible, that doesn’t absolve the culprits. Public office is a public trust, and weighing fitness for it is a matter of everyday discernment, not proof beyond a reasonable doubt. You know this when the unconvicted sociopath, fresh off his second or third harassment arrest, shows up on the doorstep looking to take your daughter out. Do you really need a jury to decide that one for you?


No, they’ll never stand trial, but Franken should go away, and Roy Moore should stay away.

No sooner had yet another Moore accuser come forward than did Senator Franken’s infamia burst on the scene. True to the way these things go now, the Minnesota Democrat’s scandal had worsened by evening when a second harassment complainant (citing verbal rather than physical abuse) emerged. Past being prologue, by the time you read this, there are apt to be more victims and more outed predators.

Felony Sexual Battery



The freshet of commentary about Moore, Alabama’s Republican Senate candidate, has continued for a week. We are all too familiar with the anguish of his accusers and the difficulty — probably, the impossibility — of proving their claims, some of which stretch back 40 years.

The Franken allegations, leveled by newscaster and model Leeann Tweeden, are at once less abominable (a creepy kiss during a rehearsal and a grope while she was asleep) but more certain (there is photographic evidence of the grope). Franken garnered some sympathy by a prompt apology, but he is playing out a shopworn stratagem. When evidence is equivocal or in the nature of a “he said, she said,” you deny — as Moore has, and as Franken has regarding the forcible kiss (“I certainly don’t remember the rehearsal for the skit the same way” as Ms. Tweeden). But where the evidence is incontestable, don’t contest it — no point fighting an authentic picture, but saying “I’m sorry” might convince the credulous that you really are.

Does overwhelming evidence equate to a slam-dunk conviction? No. As with Moore, the case against Franken is too stale for prosecution.



According to Ms. Tweeden’s account, Franken’s offensive conduct occurred in 2006, when she was a model and sports-media personality and he was still a professional comic actor, and writer. They headlined a U.S.O. tour in the combat zones of the Middle East. It involved comedy skits written by Franken, who slyly worked a kiss into the plot. When they were alone backstage before the debut, he pressed the reluctant Tweeden to rehearse the smooch. After some awkward protest, she acquiesced. He proceeded, she says, with tongue-plunging force. Humiliated but not wanting to ruin the tour, she did not make a fuss beyond warning him not to pull such a stunt again. Through the remaining two-week tour, she avoided him when possible, and he reacted with “petty insults.” Exhausted as they departed Afghanistan on a C-17 military transport, Tweeden quickly fell into a deep sleep. She doesn’t say how long she slept and didn’t discover that she’d been groped until she saw the already infamous photograph when she got home.

The boorish kiss is not actionable: Franken exploited a theatrical opportunity that Tweeden concedes she grudgingly permitted (albeit not as Franken performed it). The issue is the grope. The photo depicts him putting his hands, fingers splayed, over and partially on the Kevlar vest where it covered Tweeden’s breasts. Franken apologists claim his mitts are “only hovering over” the target, but the picture shows some touching. Tweeden’s humiliation is no doubt intensified by Franken’s lecherous leer. (We don’t know what moron snapped the picture — Franken’s brother Owen has denied a report that he’s the photographer.)


As my friend and fellow barrister David French points out, sexual contact may constitute felony sexual battery in at least two situations that apply here — when the victim has not consented and when she is physically helpless. For purposes of assessing the grounds for prosecution, then, we should assume that a grope occurred while Tweeden and Franken were flying over a foreign country or international waters. They were being transported in a military aircraft, but were no longer in combat zones under military jurisdiction.

Statute of Limitations Bar

The first legal problem, an insuperable one, involves staleness.

Franken’s malfeasance occurred eleven years ago, so prosecution would be time-barred in many if not most American jurisdictions. In general, the federal statute of limitations for most crimes is five years (under section 3282 of the penal code). That would ordinarily be irrelevant because sexual assault is almost never a federal crime. But it is relevant here, for reasons we’ll get to.

As for the states, some (e.g., Wyoming and Virginia) have no statute of limitations on sexual assault. Most do, ranging from 3 to 30 years. Many states vary their limits, with longer periods for more severe offenses (e.g., rape). Emily Shugerman of the U.K.’s Independent has looked at the law in all 50 states.

Note: A staleness problem does not cast doubt on the crime. Many legal defenses are directed at the sufficiency of the evidence (e.g., mistaken identity or lack of intent). They vitiate the allegation that a crime occurred at all, or that the accused committed it. A statute-of-limitations defense, by contrast, simply means the state is barred from prosecuting. It is not a finding that the accused is not guilty.

On the facts Tweeden has posited, no state has jurisdiction to prosecute Franken. As we shall see, only the federal government has jurisdiction, so the five-year federal statute of limitations would bar prosecution.


Federal Jurisdiction

Now, if there were no timeliness issue, would there have been a jurisdictional basis for federal prosecution? The answer is yes.

Let’s dispose first of the question of military prosecution. Even though he was on a U.S. military aircraft, Franken, a civilian, was no longer in a combat zone. Even in a combat zone during a formally declared war, the concept of subjecting American civilians to military justice is controversial, to say the least. Franken could only be prosecuted, if at all, in the civilian justice system.

That system usually does not handle criminal assault cases, including sexual assault. Generally, assault is not a federal offense because it is an intrastate act, criminalized by all states. To establish the rare federal assault crime, there must be a federal interest involved (e.g., protection of federal officers and foreign diplomats). There is an important exception, though.

Offenses against Americans sometimes occur outside the United States but in places or vessels under the control of Americans, or of our nation. The Constitution recognizes this by empowering Congress to define and punish felonies committed on the high seas (art. I, sec. 8), and by vesting the federal judiciary with “admiralty and maritime” jurisdiction. For nearly a century, the Supreme Court has construed this jurisdiction to include crimes against Americans committed on American ships operating in navigable waters — even inside the territorial jurisdiction of a foreign country.

Congress has included aircraft in its codification of the “special maritime and territorial jurisdiction” of the United States (in section 7 of the penal code). The aircraft must be in flight over the high seas or any waters within our afore-described admiralty and maritime jurisdiction. If it is, and a crime is committed aboard the plane, the so-called Assimilative Crimes Act kicks in. Under this law (section 13 of the penal code), the federal government may prosecute state crimes. Obviously, this would include a sexual assault on an American military flight over a foreign country or the high seas.

Moreover, Congress has also created the “special aircraft jurisdiction of the United States” (under section 46506 of Title 49, U.S. Code). It includes both civil and military aircraft, and enables the Justice Department to prosecute certain federal crimes that occur on a plane that is in flight. Among these are various types of assault as prescribed by federal law (specifically, Section 113 of the penal code). These include “assault with intent to commit any felony” (emphasis added). I believe that the state offense of sexual battery would qualify as “any felony”; if so, the offense is punishable by up to ten years’ imprisonment. Otherwise, the law also outlaws “simple assault” as a misdemeanor, punishable by up to six months’ in jail.

Consequently, if not for the time bar, Senator Franken could be prosecuted in the federal system for felony sexual assault.

Expulsion


In Faithless Execution, I explained that the Framers saw impeachment as the removal remedy for federal officials shown to be unfit for office. Thus, they adopted a standard for triggering impeachment — “high crimes and misdemeanors” — that does not require a prosecutable offense. More redolent of military than civilian justice, this removal standard targets derelictions of duty, breaches of fiduciary obligations, and other conduct unbecoming of public officials.

The removal of a president would be a matter of grave national unrest. Removing one of a hundred senators, while by no means trivial, would be of significantly less moment. Removed senators, after all, would be quickly replaced; and as the recent corruption trial of Senator Robert Menendez (D., N.J.) illustrates, the business of the Senate goes on uninterrupted even when a lawmaker absents himself for many weeks without a replacement. Given the comparative perils, it should come as no surprise that the Constitution’s standard for expelling a senator is considerably less demanding than for removing a president.

Under the relevant provision (art. 1, sec. 5), each congressional chamber may, “with the Concurrence of two thirds, expel a Member.” There is no necessity to establish “high crimes and misdemeanors.” The Senate is empowered to make its own rules of decorum and fitness. The Constitution leaves the matter exclusively and explicitly to the Senate’s own discretion, so there is no judicial review.

Patently, Al Franken is not fit to be a United States senator. That is not a close call.

Patently, Al Franken is not fit to be a United States senator. That is not a close call, certainly not if we judge Franken in accordance with threats by lawmakers to expel Roy Moore if he is elected. Of course, if Moore makes it to a Senate swearing-in, it will be because the citizens of Alabama, fully aware of claims of egregious abuse of women, voted him into office anyway. In Franken’s case, the voters will not have endorsed him and his abusive conduct is not merely “claimed” — it is readily provable.

I was not a Moore fan even before the sex-abuse claims. Obviously, I’d like to see him step away. Failing that, I’d like to see Republicans find a legal way to shove him aside. If he is elected in a vote that is effectively a referendum on his fitness, however, it would be very difficult to find 66 Senate votes to deny him his seat. This referendum dynamic affects President Trump, too. Understandably, Democrats and anti-Trump commentators ask why the new consciousness about sexual abuse has not resulted in an “Impeach Trump” groundswell. Putting aside that removal of a president would be a shattering national experience, the notorious Access Hollywood video was a focus of the presidential campaign’s last month. The voters elected Trump anyway — a result that was more an indictment of his opponent than an endorsement of him.

That is not the Franken situation. If he fails to resign, expulsion proceedings should commence forthwith. Democrats like to posture about the “war on women.” Shouldn’t Senate majority leader Mitch McConnell force them to take an accountable vote on Al Franken? And if there is any thought of refusing to seat Roy Moore, wouldn’t a Franken expulsion put Alabama voters on notice, before they go to the polls on December 12, of the Senate’s disqualification standard in our new era of heightened awareness?

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