McConnell doesn’t get to play Roy Moore’s judge, jury and political executioner

McConnell doesn’t get to play Roy Moore’s judge, jury and political executioner
© Greg Nash

American jurisprudence is well-known for its basic premise of “innocent until proven guilty.” In a court of law, a criminal defendant must be found guilty beyond a reasonable doubt to be convicted of a crime. That defendant walks into the court presumed innocent until that presumption is rebutted by evidence that a judge or jury finds convincing beyond a reasonable doubt.

A political campaign may not be a courtroom, but nonetheless Americans have an innate sense of fairness and due process. Americans believe that due process is a precept applicable in many walks of life, including the workplace, which is why unions, for example, negotiate contracts that include binding arbitration clauses. Why? Because we want to believe that in most every aspect of life there is a semblance of due process.


Political campaigns, often compared to trench warfare, should also have some sense of due process, of basic fairness, of a presumption of innocence until proven guilty beyond a reasonable doubt. The current Alabama U.S. Senate campaign has abandoned any concept of fairness.


Let me be clear about several things.

One, I am not a citizen of Alabama and would not dare tell Alabamans how to conduct their elections. They have their own election laws, their own political culture, and currently, their own battle. Let them fight it out. Let them fight it out. 

Two, I don’t particularly like Republican senatorial candidate Roy Moore. He has shown a disdain for the rule of law, blatantly ignoring court rulings. He has twice been removed from the bench. And in each of those instances he received due process before losing his judicial position. I am not certain how I would vote in Alabama, except to say that I would not vote for the Democrat because I want the U.S. Senate to remain in GOP control. I am openly partisan in that regard.

Three, the voters of Alabama have made their primary choices and those names are on the general election ballot. I have not found an applicable Alabama statutory provision for removing either of those names from the ballot.

Since those names were placed on the ballot, women have come forward alleging sexual and other misconduct or inappropriate behavior by Moore. None of those allegations have been proven true or false in a court of law — either criminal or civil. They are just that — allegations. 

In the political world allegations are part of the body of evidence the jurors will consider when they cast their ballots. Those voters — those political “jurors” — will decide the credibility of the charges. They are the only jurors in the entire United States whose votes matter.

Which brings me to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFurious Republicans prepare to rebuke Trump on Syria Republicans wrestle with impeachment strategy Mattis warns 'ISIS will resurge' without U.S. pressure on Syria MORE

McConnell is not an Alabama voter. He is not a so-called juror in that election. Yet, McConnell acts as judge and juror in the Alabama senate race. He needs to let the voters of Alabama decide whether or not Roy Moore will be their representative in the U.S. Senate. That is not his decision to make.

McConnell has made multiple attempts to deny Alabama voters, and Moore, the due process and presumption of innocence to which he is entitled. The most despicable of criminal defendants at least get to have a jury decide their fate. McConnell is not on this jury. He certainly is not the judge.

McConnell told The Wall Street Journal, “With regard to the Alabama race, Roy Moore should withdraw. The women who’ve come forward are completely credible.”

“His campaign is collapsing,” he added. “From a Republican point of view it produces a dilemma because the ballots have been printed.”

McConnell said the GOP’s “only option would be a write-in,” after discussions with President Trump, Vice President Mike PenceMichael (Mike) Richard PenceLouisiana's Democratic governor forced into runoff 2020 general election debates announced Trump's concerning vision for international religious freedom MORE and White House chief of staff John KellyJohn Francis KellyMORE.

So what if he’s spoken to the president, vice president and chief of staff? None of them are voters in Alabama either. This is the equivalent of political bullying. And while I may not like the person being bullied, I dislike the bullying more.

Every one of the victims of Roy Moore’s alleged inappropriate behavior may indeed be telling the truth. Whether they are telling the truth or not, at this stage of the political process, is a question of credibility for the Alabama voters — not for the president, vice president, chief of staff, or particularly, McConnell.

Sure it is political intrigue for the media and political parties to pontificate about the personal behavior of Moore (as I’ve said, I’ve found his judicial behavior abhorrent) and garner clicks, likes and eyeballs. Have at it. That’s part of the process.

Just don’t pontificate about removing a balloted nominee for the U.S. Senate. McConnell even admitted as much in the same Wall Street Journal article noting, “The Supreme Court in a case in 1969 said the act of seating someone, swearing them in, is limited to constitutional qualifications,” — then added in the same breath, if Moore were sworn in he would immediately face the Senate ethics committee.

Yes, McConnell, if the “jurors” in Alabama see fit to send Roy Moore to the U.S. Senate, then and only then can you play judge and jury. In the meantime, the people of the state of Alabama decide who will represent them, just as the voters of Kentucky decide who represents them. 

I believe that the most despicable among us — whether in a courtroom or on a ballot — are entitled to due process and an acquittal or conviction. In the case of an election, any candidate deserves to be judged only by the voters at the ballot box.

Don’t strip the concept of due process from those most qualified to make that judgment — the voters.

Michael D. Brown is the former undersecretary of Homeland Security and director of the Federal Emergency Management Agency under President George W. Bush from 2001-2005. He is the author of “Deadly Indifference – The Perfect [Political] Storm.” Follow him on Twitter at @michaelbrownusa.