For politicians facing sexual misconduct charges, no swift 'firings'

The firing of “Today Show” anchor Matt Lauer had the feel of a summary execution.

NBC brass received a credible allegation of workplace sexual misconduct against Mr. Lauer on Monday night, and by Wednesday morning, he was gone. In a flash, another famous personality has joined the list of high-profile men from media, entertainment, and business who allegedly abused their power with (in most cases) women – and lost their jobs.

The contrast with the political world could not be more stark, as Republican strategist Ana Navarro captured in a tweet. Members of Congress, a candidate for a critical Senate seat, and the president himself all face ugly sexual allegations, and these men are still in place.

On its face, the disparity in outcomes may seem unjust. Why can’t men in politics who have been accused of abusing their office be dispatched quickly? Or, in the reverse, why shouldn’t Lauer have been allowed to hold onto his position, the way countless allegedly miscreant men in public life have, while the charges are fully investigated and both sides aired? 

The answer is simple: On questions of professional life and death, the political world and private sector are not parallel. And it is a distinction that goes right to the heart of democracy.

“The private sector is worried about bottom-line numbers and shareholders, and about the kind of image a business wants to project,” says Kimberly Wehle, a law professor at the University of Baltimore.

If the management – a boss or a board – of a private organization finds a woman’s allegations credible, Professor Wehle notes, it can move quickly and fire the accused. Any hearing of defense takes place behind closed doors. And there is no legal structure that prevents swift action, though fear of a lawsuit could serve as a check.

With elected officials, there’s a larger authority at play: the Constitution, and the system of self-government it establishes.

“The boss is ‘We the People,’ ” says Wehle, reciting the document’s first three words.

It’s the voters who decide whether an accused politician is reelected or wins office in the first place. In the case of Roy Moore, the Alabama Republican vying for a US Senate seat on Dec. 12, allegations of unwanted sexual behavior while in his 30s toward teenage girls have turned an easy GOP victory into a close race. But the bottom line is that Mr. Moore’s political fate lies with the voters of Alabama, and recent polls have shown Moore’s support ticking back up.

Once in office, elected officials are still ruled by the people, in the form of their elected representatives. The Constitution empowers both the House and Senate to expel a peer with a two-thirds vote – a gantlet Moore could face, if elected. But the bar is high, and expulsion is rare.

Senate majority leader Mitch McConnell has said that an investigation by his chamber’s Ethics Committee is “almost certain” if Moore is elected, before any attempt to expel him. But the idea of possibly overturning the will of the people gives at least one fellow GOP senator pause, even though she does not support his candidacy.

“If the voters of a state, fully knowing all of these allegations, nevertheless choose to elect Roy Moore, is it appropriate for the Senate to expel him?” asked Sen. Susan Collins (R) of Maine, at a Monitor breakfast Thursday. “I think that’s a really difficult question. And I don’t know the answer to that yet. I would want to see the Ethics Committee’s deliberations.”

It’s also worth noting, analysts say, that the cumbersome expulsion process serves as a protection to public officials who could otherwise be victims of a smear campaign for political reasons – just as allegations of sexual misconduct, in any context, could be false.

Under pressure to resign

Members facing major ethics charges often resign before they can be expelled. In 1995, Sen. Bob Packwood (R) of Oregon resigned after the Senate Ethics Committee issued a 10-volume indictment chronicling sexual abuse of former aides and lobbyists.

On Thursday, House minority leader Nancy Pelosi called for Rep. John Conyers (D) of Michigan to resign from Congress, in the wake of allegations that he sexually harassed women on his staff. Congressman Conyers, who is currently in the hospital, has acknowledged that one of the women received a settlement, but has denied the allegations.

Also Thursday, Rep. Joe Barton (R) of Texas announced that he would not seek reelection, after sexually explicit images of him from a consensual extramarital relationship were posted on the internet.

The issue of pressure to quit office, or quit a race, over allegations of sexual misconduct opens a Pandora’s box of comparisons.

When Reps. Gerry Studds and Barney Frank, both gay Democrats from Massachusetts, became embroiled in sex scandals in the 1980s, neither resigned or faced pressure from Democratic leaders to resign. Mr. Studds was censured by the House, and Mr. Frank was reprimanded – and yet both were still reelected many times before retiring. But in 2006, when Rep. Mark Foley (R) of Florida, also gay, faced his own scandal involving explicit messages allegedly sent to current and former congressional pages, some underage, he resigned under pressure from the GOP leadership. A subsequent FBI investigation did not result in any criminal charges against Mr. Foley.

The highest-profile cases may be most instructive. In 1991, Clarence Thomas reached the Supreme Court, despite charges of sexual harassment by a former subordinate, Anita Hill, at his confirmation hearing. He denied the allegations.

In 1992, Bill Clinton won the presidency despite allegations of sexual misconduct, and survived impeachment in 1998, after he was caught lying under oath about an affair with an intern, Monica Lewinsky. Both cases may have taught candidate Donald Trump an important lesson when he faced numerous allegations of sexual misconduct: True or not, deny the charges – and let the voters decide.

More explosive for President Trump, late in the 2016 campaign, was an old recording by “Access Hollywood” of him boasting about aggressive sexual behavior toward women. Mr. Trump admitted making the comments, and apologized. But today he is casting doubt on the tape’s authenticity, a retreat into the old approach of denial when faced with uncomfortable information.

A tipping point – or not?

If Moore wins in Alabama, the takeaway for some – including the Republican leaders in Washington who called on him to quit the race – may be that denying sexual impropriety still pays off.

A Moore victory could also dampen talk that American society has reached a tipping point on the issue of sexual harassment. If voters are still willing to elect leaders amid numerous such charges, that may indicate a definitive shift in the culture has yet to take place.

“I don’t think we’ll know if we’ve reached a tipping point until we see what happens in the 2018 midterm elections,” says Renee Knake, a law professor at the University of Houston.

Assessing public attitudes toward sexual harassment in the political sphere is complicated. Some Alabama voters say they resent GOP leaders in Washington telling them or Moore what to do. And some argue that even if the allegations are true, he’d still be better than the Democrat, former US Attorney Doug Jones.

That is the argument some Republicans offered when they voted for Trump: They disliked his treatment of women, but said he’d still be better than Hillary Clinton. When President Bill Clinton got caught with an intern – a power disparity that could hardly be wider – plenty of feminists looked the other way and still supported him.

Those days may be over. Or they may not. Congress sets its own rules, but those rules reflect the cultural norms of the time. The revelation that Congress’s Office of Compliance has paid settlements totaling $17 million in taxpayer money over the past 20 years – although most of them not over sexual harassment – has sparked outrage. Whether such taxpayer-funded settlements will remain in place, including the confidentiality agreements that come with them, is a matter of debate.

On Wednesday, the House passed legislation requiring sexual harassment training for lawmakers and their staff, but members of Congress say it’s only the first step.

Accusations against Trump

The story also hasn’t ended for Trump. He faces a defamation lawsuit by Summer Zervos, a former contestant on his old show “The Apprentice” who accused him of unwanted sexual advances. The New York State Supreme Court is weighing whether to allow the case to proceed. If it does, Trump’s other accusers could be deposed.

The case is important because it may establish whether US presidents can be subject to civil suits in state court over their private conduct. Whatever the outcome, the subject of Trump and sexual harassment will return to the headlines, as will discussion of how a president’s private actions should be treated in court. Lawyers note that in 1997, the US Supreme Court ruled in favor of allowing Paula Jones to sue Mr. Clinton for sexual harassment in federal court while he was in the White House.