Where is due process in all the sexual harassment allegations?

Sexual misconduct allegations are roiling Congress, corporations, the media and Hollywood. Victims, mostly but not exclusively women, have come out of the woodwork, reciting lurid experiences, some from decades ago. As the volume of accusations grows, so do fears about witch-hunts, backlash and failure to take the issue seriously long-term. All sides are screaming for due process, both for the accuser and the accused. They are right. Due process is critically important. But what “process” is “due” is not a “one size fits all” proposition. Context matters.

Due process is about fundamental fairness. Before government can deprive someone of life, liberty or property, the Constitution demands fair process. At a minimum, three things are required: notice of the accusation against the accused, an opportunity to rebut the accusation in a meaningful manner and time frame, and a neutral decision maker. When courts adjudicate civil lawsuits, due process ensures that parties have access to lawyers, extensive pre-trial discovery through mechanisms such as depositions and cross-examination at trial. When there is a criminal prosecution, additional protections are provided, such as prohibitions on double jeopardy and self-incrimination or the rights to confront witnesses and assistance of counsel.

{mosads}Beyond court proceedings, however, what process is due? For accusations made against those in the private sector, when no prosecution or litigation is involved, constitutional due process is inapposite because there is no government involvement. Private businesses such as the Weinstein Company or NBC can fire Harvey Weinstein or Matt Lauer after whatever process, if any, they deem appropriate.

For accusations against sitting members of or candidates for Congress, by contrast, any attempt by Congress — a government entity — to deprive members of their position could trigger constitutional due process concerns. Two recent examples are worth considering: first, the accusations against sitting members, such as Rep. John Conyers (D-Mich.) and Sen. Al Franken (D-Minn.), and second, the U.S. senatorial campaign of Republican Roy Moore in Alabama.

For sitting members, the 1995 Congressional Accountability Act (CAA) requires Congress to abide by the same anti-discrimination laws as private businesses, with one twist: Claims filed by staffers against members or their staff must undergo an elaborate process before a lawsuit can be filed in court. Accusers must file a formal “request for counseling” with the Office of Compliance within 180 days of the alleged discriminatory act. Once the counseling period expires, the accuser has only 15 days to request mediation through the Office of Compliance. If mediation fails to produce settlement, the accuser has 90 days to file a lawsuit in federal court. If the accuser fails to meet any of the timelines specified in the CAA, her ability to seek relief ends. All settlements and awards are paid out of appropriated taxpayer funds.

Those staffers who accuse members of Congress of impropriety must thus jump through multiple hoops before they can seek relief in court. The process afforded to accused members is far more generous than for most accused individuals in the private sector. For victims, however, the CAA’s elaborate processes are designed to be annoying, time consuming and, ultimately, a strong deterrent to litigation.

But due process is concerned with protecting the accused, not the accuser, so requiring additional layers of process such as counseling and mediation, within the bounds of reason, is consistent with due process. If Americans conclude that these “extra” layers of process need to be peeled back, the CAA can be amended. Indeed, several reform bills have already been introduced. Whether Congress is willing to relinquish its extra procedural protection remains to be seen.

Candidates for Congress, however, do not benefit from the CAA’s process. While accusations hurled during a campaign can have significant impact, the only process for vetting such accusations is media coverage and the election itself. In the Alabama race, for example, 41 percent of voters agreed that allegations of sexual misconduct against Roy Moore were either “the single most important factor” or “one of several important factors,” and 52 percent believed they were “definitely or probably true.” Not surprisingly, Moore lost, at least in part, because he lost in the court of public opinion.

This is as it should be. Media coverage, from across the political spectrum, will generally provide sufficient information to enable voters to weigh the seriousness and veracity of charges, and important details will come to light quickly. Anonymous accusations will likely be taken less seriously than public ones. Multiple allegations and documentary evidence will lend credence. Older accusations may be given less weight than newer ones. Allegations of genital touching will likely have more impact than kissing or non-genital touching.

Voters are perfectly capable of weighing these factors and deciding whether to give accusations credence. Voters are essentially jurors, operating on a shorter timeframe and with less evidence than in a court proceeding. But once voters make their decision, it must be respected. If voters weigh the evidence and decide to elect a candidate despite accusations, Congress should seat the individual and get on with the people’s business.

House and Senate Ethics Committee hearings are appropriate to determine whether to censure or otherwise punish a sitting member, but not to determine whether to seat him. As the Supreme Court concluded in Powell v. McCormack, Congress’s authority to exclude members is “limited to the standing qualifications prescribed in the Constitution,” of which there are only three — age, citizenship and inhabitancy — in the state at the time of election.

While Congress has authority under Article I, Section 5 to expel a seated member with two-thirds concurrence, expulsion for conduct that occurred prior to congressional election would be breathtakingly aggressive. Indeed, in 2008, the Senate Ethics Committee dismissed a complaint filed against Sen. David Vitter (R-La.), accused of repeated solicitation of prostitution, with the first reason articulated being “the conduct at issue occurred before your Senate candidacy and service.”

Expelling a member for conduct that occurred during office, by contrast, would stand on firmer constitutional ground. Precedent strongly suggests, however, that sexual indiscretions are highly unlikely to result in expulsion, and for good reason. Of the 20 expulsions of sitting members that have occurred, 17 were for supporting the Confederacy. The remaining three — Sen. William Blount (R-Tenn.), Rep. Michael Myers (D-Pa.) and Rep. Jim Traficant (D-Ohio) — were likewise expelled for serious criminal behavior inconsistent with public trust (treason, bribery and racketeering, respectively). Short of expulsion, however, as Sen. Franken and Rep. Conyers know, the threat of an ethics committee investigation is often sufficient to trigger resignation in an effort to avoid further public airing of indiscretions.

When it comes to allegations of sexual impropriety against a president or presidential candidate — such as those made against President Clinton and presidential candidate Donald Trump — higher stakes should counsel extreme hesitation for Congress to “investigate” or second guess the will of voters. Indeed, short of impeachment, Congress lacks jurisdiction to investigate allegations of presidential impropriety. A president is not another member of Congress, and thus not subject to the jurisdiction of congressional ethics or oversight committees.

While a president may be removed from office for “high crimes and misdemeanors,” impeachment charges are referred to the appropriate House committee, and they involve serious breaches of public trust committed during the president’s time in office. Short of impeachment proceedings, calls for Congress to “investigate” a sitting president’s sexual behavior prior to inauguration are inappropriate process and odious to our Constitution’s separation of powers.

Elizabeth Price Foley practices constitutional law in Washington, D.C., and is a constitutional law professor at Florida International University College of Law. She is a former staffer for two Democratic congressmen.