Retired Federal Prosecutor Explains Why Roy Moore Must Be Disqualified

Former Alabama Supreme Court Chief Justice Roy Moore, now a candidate for the  United State Senate, stands accused by five women of making unwanted sexual advances upon them when they were teenagers – one only 14 – while he was a district attorney in his 30s. Some of his supporters argue that Moore should not be tarred by the allegations because he is innocent until proven guilty. One of the most misunderstood concepts in American society is the standard of proof we should insist upon in evaluating his potential wrongdoing. 


     Shocking to some who have not studied the law, the concepts of “innocent until proven guilty” and “proof beyond a reasonable doubt” is not explicitly set forth in our Constitution. Nevertheless, though court decisions they have become firmly entrenched concepts in all criminal trials, and indispensable to the American system of justice. And yet, many people inappropriately conflate these concepts outside of the courtroom where they do not apply at all. When some person is criticized for having engaged in a bad act, it is important for Americans to ask, “Is the person formally accused of a crime – that is, charged by the police or indicted by a grand jury for a specific offense – or is he merely identified for some act that is reprehensible, whether or not it may also be a crime?” 


     Pundits have been discussing the conduct of Senate candidate Roy Moore without almost ever getting the standard correct. Moore has not been charged with a crime. There is NO standard or burden of proof that applies to a candidate for office. There is NO presumption of innocence that applies in an election. Everyone is free to make up their own minds about the character of the candidate. Think of it this way, if one does not like the way a candidate looks, can the potential voter vote against him? It may be a superficial basis upon which to do so, but the answer is, certainly yes. Does the same notion apply if the voter feels the candidate may be dishonest? Again, yes. Need the voter be convinced beyond a reasonable doubt that the candidate actually is dishonest, or must one presume the candidate innocent of the allegation? Not at all. So long as the matter being contested is not inside a courtroom and part of a criminal trial, it is utterly up to each individual to use their common sense to decide what he or she feels is the appropriate response to the allegation. If it appears likely to the voter that Moore molested young girls, no further proof is needed. That is not to say there are not powerful pieces of information that may help inform one’s view of the matters involving Moore, which everyone should consider. Indeed, evaluating all the information about these allegations is important, and nearly everyone’s experience in everyday life aids them greatly in determining issues of credibility. 


     Consider the following. With regard to the sexual abuse scandal, the five separate women who accuse candidate Moore all reported the abuse to family and friends at the time it happened. Nearly 30 individuals have confirmed the victims told them of their molestation contemporaneously with the reported events. Many would consider such reports highly significant corroboration. None of the victims appear to know each other or otherwise to have joined together to present a single version of events. The women are Republicans who generally describe themselves as conservatives, and who report they voted for Trump. None have filed lawsuits or otherwise are seeking monetary compensation from Moore. None have written books or appear to be seeking the spotlight. Only one of the four has gone on camera to discuss the matter; and that was because she came forward after the others, for the purpose of publically backing them with her own experience. When this fifth accuser did come forward, she produced her high school year-book, signed “Love, Roy Moore” in which he wrote about how attractive he considered the teenager. The signature appears to match many other public documents signed by the candidate. The four original accusers told their stories reluctantly when approached by the media. Finally, another lawyer in the district attorney’s office when the candidate worked there, commented publically that it was well known at the time Moore endeavored to date high school students. Given Moore’s power in the state, the woman providing this information does so at considerable risk to her own future, as do the others. 


     Other pieces of information are relevant to an evaluation of candidate Moore’s trustworthiness. Twice the candidate rose to the highest stature within the Alabama legal system, that of Chief Justice of the state Supreme Court. Twice, he was removed from his position for legal and ethical violations. When Moore ascended to the Alabama Supreme Court, he twice swore an oath applicable to all judges of the state: 


I, Roy Moore, solemnly swear that I will support the Constitution 

of the United States, and the Constitution of the State of Alabama, so 

long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God. 


     The first time Moore was removed from the Alabama Supreme Court it was because he had a two-ton granite block bearing the Ten Commandments installed in the Court’s rotunda. When sued for his actions, he disobeyed the orders of a federal district judge, a federal court of appeals, and, eventually, all of the other Justices on the Alabama Supreme Court, to remove the display. These judges unanimously found that his acts violated the establishment clause of the First Amendment. Thereafter, the Alabama Judicial Inquiry Commission found that Moore had violated the State’s Cannons of Judicial Ethical and removed him from office. 


     The salient point to be made in the context of the sexual abuse allegations is that Moore took an oath of office in which he swore to follow the law. When he was found not to have done so, including by his fellow Alabama Supreme Court justices, he refused to comply with their directions as to how to remedy his violations. Thus, in the most obvious manner, he violated his sworn oath by failing to “faithfully and honestly discharge the duties of his office;” one of which required him to follow the directions of federal courts on matters involving the interpretation of federal law. 


     After a period of time, Moore ran again for the Alabama Supreme Court Chief Justice and was elected. In 2015, the United States Supreme Court ruled that same-sex marriage is a fundamental constitutional right and must be permitted in every state of the union. Moore disagreed but was bound to follow this decision, as are all state courts, by the Supremacy Clause of the United States Constitution. Simply stated, a state court has no power to overturn or otherwise refuse to follow the U.S. Supreme Court in matters involving, among other things, the interpretation of federal constitutional law. Nevertheless, Moore directed court clerks throughout Alabama to refuse to follow the U.S. Supreme Court decision. For his conduct, the Alabama Judicial Inquiry Commission found that Moore had:


  1. Disregarded a federal injunction;
  2. Demonstrated an unwillingness to follow clear law;
  3. Abused his administrative authority;
  4. Substituted his judgment for the judgment of the entire Alabama Supreme Court;
  5. Interfered with the legal process and remedies of a United States District Court and the Alabama Supreme Court;
  6. Failed to recuse himself after his impartiality clearly in question. 


     For the second time he was removed from office. Again, the focus here goes beyond what he did wrong legally. It goes to his oath of office. He promised – swore an oath – to engage in a course of conduct that he repeatedly, egregiously violated. In so violating his oath, he lied, because he had promised but was not faithfully supporting the Constitution of the United States. Accordingly, when Alabama voters are considering whether to elect candidate Roy Moore to the United States Senate, but they are troubled by the allegations of sexual misconduct with teenagers, they do not have to resolve matters in their own mind beyond a reasonable doubt or otherwise apply a presumption of innocence to his conduct. If Moore appears an “ugly” candidate because he has not kept his word, no more is necessary.  


(Craig Benedict, a retired federal prosecutor, wrote this article.)