AUTHOR’S NOTE: For those who want to see Sen. Franken remain in office at least until the Ethics Committee process has run its course, there’s a “We support Al Franken” petition at with over 60,000 signatures as of December 8 –

“Another woman says Franken tried to forcibly kiss her”

hat was the headline on a Politico story dated 9:08 a.m. on December 6. The story had no element of alleged touching, making the use of “forcibly” an example of yellow journalism. The accuser, Franken’s seventh, said Franken tried to kiss her as she was leaving a radio studio in 2006. She was then a “Democratic congressional aide,” according to Politico, which withheld her name. Franken told Politico, “This allegation is categorically not true…. I look forward to fully cooperating with the ongoing [Senate] ethics committee investigation.”

The story could have ended there, reasonably enough. Within hours, however, around 11 a.m., Senator Kirsten Gillibrand, Democrat of New York, posted a lengthy piece on her Facebook page with the headline, “Senator Franken Should Step Aside.” This is more than the seventh accuser has asked for. Gillibrand does not explain why she is making this call now, nor does she refer to the seventh accuser or Politico. There is no suggestion of collusion, but with Politico pushing the story, a stampede of Democrats rushed to join Gillibrand’s call. In two separate stories, Politico highlighted this next-to-last paragraph of Gillibrand’s much longer statement (which was not even alluded to, much less quoted):

While Senator Franken is entitled to have the Ethics Committee conclude its review, I believe it would be better for our country if he sent a clear message that any kind of mistreatment of women in our society isn’t acceptable by stepping aside to let someone else serve.

This excerpt from Senator Gillibrand’s post seems designed to appear reasonable, even statesmanlike (by day’s end it had 5.1K Likes and 864 Shares). Her full post is far more nuanced and at some variance from this, her conclusion on the matter. Surely even she must understand that this conclusion is an act of cowardice rooted in hypocrisy, perhaps masked by an unprincipled sense of political expedience. Belying her own headline, she offers lip service to Franken’s right to due process of law (in this case what is likely to be something of a circus of a Senate Ethics Committee investigation, deliberation, and judgment). But then she says he should forego any due process of law, suggesting he’s somehow undeserving of every citizen’s right, a not so subtle rendition of Red Queen justice: sentence first, verdict afterwards.

Before breaking down the Gillibrand gesture, let’s be clear: This is not a defense of Al Franken, nor is it a final judgment on him. For now it is enough to acknowledge, Gillibrand says on Facebook, that such “behavior towards women is unacceptable.” Franken’s behavior, as sketched in allegations and admissions, is enough for a probable cause finding that Franken has been an Inappropriate Man. The full dimensions of his behavior have yet to be determined, nor has there been any considered decision as to how best to respond to Inappropriate Men everywhere. This piece is a defense of due process, a call for proportionality in judging, and most of all a defense of honest, calm deliberation of a cultural sex-storm that has long needed open and decent airing.

Gillebrand renders judgment prematurely, sort of an obstruction of justice

In effect, Gillibrand justifies scuttling due process for some higher good. Gillibrand writes, “I believe it would be better for our country” to have this just go away, essentially to sweep it under the rug, effectively a cover-up. She argues that this would send “a clear message that any kind of mistreatment of women in our society isn’t acceptable,” which is wishful thinking hiding an unwillingness to consider the reality of a country with a sexual predator as President and another sexual predator on the verge of being elected in Alabama. Those are much clearer messages than any Franken resignation could ever be. Gillibrand’s approach to Franken is a form of scapegoating in a Democratic Party that has yet to come to meaningful terms with Bill Clinton’s sexual predation. That, too, is a clear message. Gillibrand would have us believe it’s better for the country to have Franken be a sacrificial lamb, rather than our struggling to come to serious terms with the full range, depth, and history of a culture that allows Inappropriate Men everywhere to feel entitled to their inappropriateness, thanks in part to the clear messages of predatory presidential scofflaws.

Gillibrand argues that Franken’s stepping aside would send a clear message, but she must know that’s sophistry, given all the others who have stepped aside over the years for infractions far worse than Inappropriate Man, and still the “message” has not been received.

So what could Gillibrand have said if she wished to truly lead, if she wished to be truly just, if she wished to be and not just seem to be “presidential”? She could have said something like: Whether Al Franken resigns or not is a matter of conscience for him to decide. The allegations against him to date do not come close to the charges against others, charges which are going unaddressed. Franken’s is a tough case, balancing inappropriate behavior that he has apologized for against a career in which, both in show business and the Senate, he has been a strong advocate and actor for women’s rights. What would be the real message of pillorying a man of such mixed degrees? The country will be better served, I think, by thoughtful deliberation – insofar as that is possible – by proceeding with the due process provided by the Senate Ethics Committee and coming to a considered, proportional judgment that is more nuanced than a ritual auto da fe. The country has long needed to consider the way it has lived, the behavior it tolerates from some and not from others, the honesty with which it approaches and embraces sexual issues. This case with Inappropriate Man is an opportunity to have such a conversation, an opportunity to consider ambiguity and nuance, an opportunity to try to find some proportionality in assessing behavior, rather than a one-size-fits-all sexual guillotine applied at the first whisper of accusation. This is a conversation intended to promote rationality, sanity, and understanding, this is about tolerance, not bigotry, this is about turning away from the way we are and trying once again to find our better angels.

Gillibrand knows better, even as she seeks to rid the world of that troublesome Franken. As she also writes in the same anti-Franken Facebook post:

But this moment of reckoning about our friends and colleagues who have been accused of sexual misconduct is necessary, and it is painful. We must not lose sight that this watershed moment is bigger than any one industry, any one party, or any one person.

The pervasiveness of sexual harassment and the experience women face every day across America within the existing power structure of society has finally come out of the shadows. It is a moment that we as a country cannot afford to ignore.

Unwanted sexual attention is unacceptable, but it is not monochromatic. Or is a missed kiss really equivalent to forced sodomy rape? Surely not, but the trickier problem is how and where to draw lines. And having drawn the lines, is it then only a question of punishment and retribution? Is there no middle ground? Is there no opportunity for real atonement? This is not about contrition (which can be easily faked) or forgiveness (who is the forgiver?), it’s about actual atonement. So which, hypothetically, serves justice better: Franken gone and soon forgotten? Or Franken in the Senate, accepting whatever guilt and responsibility he deserves, and carrying on publicly in full support of the articulated values of Gillibrand and others? Assuming he would perform that way (as yet uncertain), who would lose? He’s up for re-election in 2020. Can we not trust our processes to make some progress sorting this out? Or have we come to believe we live in an America where there is no difference between Minnesota and Alabama?

Gillibrand sensibly writes: “We have to rise to the occasion, and not shrink away from it, even when it’s hard, especially when it’s hard. That is what this larger moment is about.” But then she goes on to pre-judge the Franken case and call for the metaphorical guillotine. But to do what? Except for Franken’s immediate banishment, she has no serious answer. Maybe there is none. Or maybe the answer is the process of searching for an answer. Gillibrand expresses the confusion neatly and ungrammatically:

As the mother of two young boys, we owe it to our sons and daughters to not equivocate, but to offer clarity. We should not have to be explaining the gradations between sexual assault, harassment and unwelcome groping. And what message do we send to our sons and daughters when we accept gradations of crossing the line? None of it is ok and none of it should be tolerated.

And what is the form this enlightened intolerance should take? Kirsten Elizabeth Rutnik Gillibrand is a 51-year old trained attorney who has been in Congress since 2007 (the Senate since 2009). She is the daughter of two attorneys. She is a Dartmouth graduate (magna cum laude) who went to UCLA Law School. She seems to have presidential aspirations. She is a smart, experienced, thoughtful person – and the best she can come up with is an invitation to Al Franken to a self-lynching based on skimpy, somewhat disputed evidence? The best she can do is urge fellow Democrats to shoot their wounded?

She positioned herself for such a stand in mid-November, in a New York Times interview, when she said that President Clinton should have resigned once his affair with Monica Lewinsky became known, becoming the highest-ranking Democrat to take that position, though not without some ambiguity. As the Times reported:

Asked directly if she believed Mr. Clinton should have stepped down at the time, Ms. Gillibrand took a long pause and said, “Yes, I think that is the appropriate response.”

But she also appeared to signal that what is currently considered a fireable offense may have been more often overlooked during the Clinton era.

At the same time, on November 16, Gillibrand tweeted about Franken:

The allegations against Sen. Franken are deeply concerning. This kind of behavior is unacceptable and should not be tolerated anywhere in our society. There is nothing funny about it and there is no excuse for it. The Ethics Committee deserves answers from him.

Gillibrand has not explained why she has shifted from supporting due process to calling for immediate beheading (surely accuser number seven’s non-kiss was not a smoking gun, was it? And if so, why?). Comparing Gillibrand’s takes on Clinton and Franken vividly illustrates the moral ambiguity and confusion that sexual issues provoke. And that is the very reason the country needs a patient, accepting, broad-spectrum, tolerant exploration of the issues. A retreat into Puritanism, banning, shunning, closing down the possibility that not every offense is a hanging offense – that is not what the country needs.

Unfortunately, with her Franken-resignation post, Gillibrand chose to start that ill-formed snowball rolling down the slippery slope of political panic. Within hours of her post, dozens of other craven Democrats rushed to judgment. None of them expresses anything more compelling than their own political interest in having him gone, and it is universally pathetic. No one has come to his defense, or even to the defense of due process. Mostly the view expressed is that Franken has become inconvenient, with the apparent implication that actually talking about the substance of his and other cases is too distracting or something. Among the more mealy-mouthed comments came from Vermont democrat Patrick Leahy, an attorney who has been in the Senate almost forever (and has abused this author, albeit not sexually):

I just learned of the latest, disturbing allegation against Senator Franken. While the facts from case to case can differ, and while there are sound reasons for weighing evidence in such cases in a deliberate and carefully considered process, Senator Franken’s situation has become untenable. I am concerned that even a prompt Ethics Committee investigation and recommendations will not come soon enough. He has to step aside. I hope as a nation that we are beginning to come to terms with the systemic problem of sexual harassment and assault, but we still have a long way to go.

What does that mean, “a prompt Ethics Committee investigation and recommendations will not come soon enough.” Soon enough for what? Leahy doesn’t say. None of these Democrats, a majority of Democratic Senators, says why resignation is reasonable solution. It is not a solution, it is just a skirt-cleaning (you should pardon the pun), a way for Democrats to assume a purity they haven’t come close to earning. Leahy says, sanctimoniously, “we still have a long way to go,” while recommending sending Franken down the memory hole, which will help them proceed as slowly as ever.

One of the finer ironies of the whole sad Franken show is that we now have the spectacle of a herd of terrified Democrats carrying out the mission of trampling a senator targeted by the likes of Sean Hannity and Roger Stone. Even Franken’s first accuser, Leeann Tweeden, didn’t call for his resignation. By the time this piece is published, Al Franken may already be gone, and maybe that’s rough justice as far as he’s concerned (though I doubt it). Whatever else it is, it’s rough injustice for a country and its democratic processes that querulous senators chose not to support. Gillibrand and other Democrats might have read and even pondered “A Survivor’s Defense of Al Franken,” written by a woman on Medium. She makes a powerful argument:

The Democratic Party is practically handing the nation’s women and children over to pedophiles and rapists simply because they asked them to. And if we let Senators like Al Franken –  representatives that have voting records filled with support for women’s rights  –  fall to pedophiles like Roy Moore, then we are allowing the real traumas of exploited women be used as an excuse to put more women and girls in harm’s way. This is what terrifies me most.

When the Franken story was breaking in mid-November I wrote in concluding a piece then:

Perhaps the worst part of this whole mess is the stampede of craven Democrats to unprincipled safety, cloaked in a mantle of self-righteous pre-judgment. No wonder the Democratic Party is in the shape it’s in, divided and standing for nothing coherent, not even due process for one of its own or countering an apparent political hit job. Whatever turns out to be the full truth about Franken, we have yet another confirmation of Democratic spinelessness.