Marcus: Was justice done in Franken’s exit from Senate?

December 12, 2017 GMT

WASHINGTON -- There’s no doubt, in the case of Al Franken, that Democrats are better off with the Minnesota senator gone. There’s more doubt about whether justice was done.

The political calculus is simple: Franken had to go. With the grotesque picture of him groping, or pretending to grope, the breasts of a fellow USO performer, he would have been a nonstop distraction, muddling Democrats’ case against alleged groper President Trump and alleged child molester Roy Moore. Franken paid not only for their sins but also for the alleged behavior of Bill Clinton two decades ago. Democrats underreacted then and consequently were impelled to overreact now.

Or, at least, act quickly. I don’t know where I would ultimately come down on the propriety of Franken’s continued service in the Senate because I don’t have a full grasp of the facts. Do you? Did his colleagues?

Sen. Kirsten Gillibrand, D-N.Y., who deserves praise for her work on issues of sexual assault and harassment and who opened the floodgates against Franken Wednesday, said she had enough facts to conclude that Franken should resign.


“Enough is enough,” Gillibrand said. “When we start having to talk about the differences between sexual assault and sexual harassment and unwanted groping, we are having the wrong conversation. We need to draw a line in the sand and say none of it is OK, none of it is acceptable.”

I agree: None of it is acceptable. What gives me pause is both the rush to judgment and the one-size-fits-all nature of the punishment, given, as Gillibrand acknowledged, the significant difference in seriousness between the Franken allegations and those against Trump and Moore.

And against Michigan Rep. John Conyers Jr., for that matter -- proving, I hope, that my position is not driven by partisanship but by concerns about due process. Public service is a privilege, not a right. The presumption of innocence and the need for proof beyond a reasonable doubt, essential in the criminal context, need not blind us in the real world to credible allegations of improper behavior.

So, any reasonable person assessing the evidence against Trump, Moore or Conyers would conclude there is more than enough reason to disbelieve their denials and more than enough reason, given the seriousness of the allegations, to conclude they are not fit to hold office. In Conyers’s case, he used $27,000 in taxpayer money to settle a lawsuit by a staffer who said she was fired after refusing his sexual advances. Other former staffers came forward with similar claims.


Franken presents a more difficult case both because of the quality of the evidence against him and the nature of the alleged transgressions. Much of the alleged behavior took place before he joined the Senate, which doesn’t make it acceptable but does make it different. Some of the Senate-era behavior is offensive but less serious; a hand on the butt during a photo op is different from a tongue down the throat. And some is anonymous, albeit corroborated by other witnesses, which should give all of us pause.

The final, and perhaps last-straw, allegation involved an unnamed former Democratic political aide who claimed Franken, while a radio host, attempted to forcibly kiss her, announcing, “It’s my right as an entertainer.” Franken said the story was “categorically not true.”

Consider: One of Franken’s colleagues, New Jersey Democrat Bob Menendez, is under federal indictment for allegedly taking bribes in the form of lavish gifts and using the power of his office to help a campaign donor/friend in dealings with the federal government. Menendez’s trial ended with a hung jury last month, after which the Ethics Committee announced it would resume its inquiry into his conduct.

If senators have the patience to let the ethics process proceed in the Menendez case, why not with Franken? What about weighing whether some lesser punishment than what was essentially forced resignation would better fit Franken’s circumstances?

The right policy is zero tolerance. That does not answer the question about what is the right punishment, or what proof there should be before it is meted out.