Representative George Santos is the third member of the House of Representatives since the Civil War to be expelled and the first in United States history to be removed before being convicted by the Judiciary. It is significant to recognize that how it internally operates and disciplines its members, including expulsion, is beyond the general cognizance of the other branches. The Investigative Subcommittee (ISC) suggested that Representative Santos was entitled to due process in his criminal prosecution although it did not specifically state that he was entitled to due process safeguards in the House pursuant to Article I, Section 5, Clause 2 of the United States Constitution. Does the End justify the Means?

Introduction

ARTICLE I, SECTION 5, CLAUSE 2 of the United States Constitution provides: “Each House may . . . punish its members for disorderly behavior and, with the concurrence of two-thirds expel a member for disorderly behavior.”

Since the adoption of the Constitution, resolutions calling for the expulsion of a member have been introduced in Congress on some thirty occasions. The debates provided by these resolutions have ranged over a wide variety of issues: What acts justify the radical sanction of expulsion; and whether such acts must amount to indictable offenses, are questions that have been considered.

The resolutions that actually resulted in expulsion suggest that Congress assumed absolute discretion in deciding when to expel, a discretion governed only by the vague requirement that a member is “unfit” or “unworthy.” What constituted unfitness or unworthiness appears to have been governed, not by any definite standard, but by the convictions of a suitable majority of the members.¹

Congress has never expressly defined by a general rule of resolution the classes of misconduct that render a member unfit to serve. However, the history of both successful and unsuccessful expulsion resolutions permits some general observations to be made about what forms of misconduct are a proper basis for expulsion.

The basic question of what resolution, if any, the power to expel bears to criminal law was raised in a series of cases that arose early in Congressional history. It was soon determined that the offending activity need not amount to a criminal offense. In the very instance of the exercise of the expulsion power, Congress expelled Senator William Blount although his epistolary troublemaking among the Indians did not then violate any criminal statute. Since Blount’s case it has seldom been suggested that Congress can expel only for conduct amounting to a criminal offense.²

The Supreme Court has ruled that the conviction of a Senator could not operate to compel the Senate to expel him, for his seat could be vacated only by some direct action on the part of the Senate in the exercise of its constitutional power. The Court recognized congressional discretion to determine whether to act at all in punishing a miscreant.³ Nor does the fact that criminal conduct has not yet led to conviction preclude expulsion. It would be anomalous to conclude that Congress can expel for conduct which does not amount to a criminal offense but cannot expel when indictable and presumably more serious conduct is involved but has not yet been prosecuted. There does not exist any textual evidence to support the view that expulsion was intended to await a member’s indictment or conviction. From a practical perspective, such a restriction on congressional power would obviously cause a risk or serious delay in reaching a decision on whether to expel an offending member. In practice Congress has waited to take action until a member convicted by a court has exhausted all avenues of appeal.⁴

House Expulsions Post Civil War

In the face of increasing reports of congressional corruption in the decade of the sixties both the House and Senate created permanent Standing Committees on Ethics, whose responsibility it is to investigate congressional wrongdoing and to recommend appropriate disciplinary action when applicable. Critics of these bodies have argued that essentially they are reactive in nature, responding to pressure from press revelations or reports, and that even when they do investigate malfeasance on the part of errant congressmen, their recommendations and actions are minimal.

For the first time in its history the House of Representatives expelled a member, Representative Michael “Ozzie” Myers (D-Pa), who served from 1976-1980, for personal corruption. By an overwhelming vote, 376 to 30, Representative Myers was stripped of his right to sit as the representative of the First District of Pennsylvania, for his involvement in the FBI sting operation Abscam case.⁵

What is distinct about this case was the decision made by the Congress not to postpone its vote until Myers’ appeal on this bribery conviction had been exhausted, and a court hearing on his claims of government misconduct reviewed. Because Myers had already been convicted in Federal Court, the Committee chose to expedite its proceedings by relying exclusively upon the court rather than lengthy hearings to determine whether Myers had violated House rules. Myers was permitted to testify and did so twice before the Committee and had been permitted to call witnesses and to present any additional evidence he chose to.⁶

More recently, James Traficant (D-Ohio) who served from 1985-2000 was expelled from Congress after he was convicted of ten felony counts including bribery, obstruction of justice, and making false statements on income tax returns in April 2022. On July 24, 2002 the House by a vote of 420-1 expelled him. Traficant argued that there were holes in the government’s case that led to his conviction and that witnesses for the prosecution lied in their testimony, but he also conceded that he was ready to go out of Congress. The Chair of the Committee, Representative Joel Hefley (R-Colo) stated that there was clear and convincing evidence of Traficant’s guilt.⁷

In the Matter of Rep. George Santos: Overview

Representative George Santos (R-NY) has been a member of the United States House of Representatives since 2023, representing the 3rd congressional district of New York. Since winning his election, Representative Santos confirmed that he “embellished” parts of his background in order to be taken seriously as a candidate. His campaign filings and House Financial Disclosure Statement included many errors, and omissions that include serious misrepresentations to the government about his campaign’s financial activities well beyond mere “embellishment.” His misrepresentations and lack of transparency continued during his tenure in office.

On May 10, 2023, Representative Santos was charged in Eastern District of New York with a fraudulent political contribution scheme, unlawful monetary transactions in connection with fraud allegations, theft of public money in connection with receipt of unemployment benefits, fraudulent application and receipt of unemployment benefits, and false statements in connection with his 2020 and 2022 Financial Disclosure Statements. He pleaded not guilty to all of these charges.⁸

Committee on Ethics Impanels Investigative Subcommittee (ISC)

On February 28, 2023, at its organizational meeting, the House Committee on Ethics unanimously voted to impanel the ISC to review whether Representative Santos may have engaged in unlawful activity with respect to his 2022 congressional campaign; failed to properly disclose required information on statements filed with the House; violated federal conflict of interest laws in connection with his role in a firm providing fiduciary services; and/or engaged in sexual misconduct towards an individual seeking employment in his congressional office. On March 1, 2023, the Committee notified Representative Santos of the establishment of the ISC and transmitted a copy of the complaint and the resolution setting forth the ISC’s jurisdiction. At that time, the Committee advised Representative Santos of his right to submit a response within 30 days. On March 31, 2023, Representative Santos’ counsel submitted a letter to the Committee advising that they did not have sufficient information to provide a comprehensive response to the complaint and that they were working with their client to gather information;⁹ however a substantive response to the complaint was never provided.

The Ethics panel appointed to investigate Congressman Santos met nine times over the course of its work, interviewed more than 40 witnesses and authorized 37 subpoenas. The panel described Santos as uncooperative with the investigation, declining to voluntarily testify or provide a statement under oath.¹⁰ The ISC considered whether to issue a subpoena to Representative Santos for his testimony, but determined not to take this step to avoid delaying the investigation and given the pending criminal allegations the congressman would invoke his Fifth Amendment right against self-incrimination. The ISC also believed that Representative Santos’ testimony would have low evidentiary value given his admitted practice of embellishment¹¹ and found that there were substantial violations of federal law, House Rules and other applicable standards related to many of the allegations charged in the indictment, and substantial evidence of additional unlawful and unethical conduct.¹²

The ISC determined that the systemic errors and omissions in Representative Santos’ campaign reporting were more than mere carelessness by his treasurer; rather, they were part of an overall scheme to avoid transparency about his campaign’s finances. The myriad reporting errors obscured numerous suspect transactions, including unreported transfers of funds directly to Representative Santos’ personal and business accounts, as well as expenditures raising significant concerns of potential personal use of campaign funds. At minimum, Representative Santos failed to take reasonable steps to prevent or correct the errors despite concerns raised to him by his campaign staff, resulting in the misreporting of substantial sums of receipts and disbursements.

By engaging in the above conduct, Representative Santos failed to uphold the laws and regulations of the United States, including provisions of FECA and its implementing regulations, and was a party to their non-compliance, in violation of paragraph 2 of the Code of Ethics for Government Services. As a result of Representative Santos’ poor campaign recordkeeping, the legitimacy of his campaign spending cannot be verified and has called into question the integrity of the House, contrary to clauses 1 and 6 of House Rule XXIII, the Code of Official Conduct.¹³

Report of the ISC: Findings and Recommendations

On November 9, 2023, the Investigative Subcommittee of the House Ethics Committee released its report, “In the Matter of Allegations Relating to Representative George Santos,” which concluded that there is substantial evidence to make the following recommendations:

1. The ISC recommends that the Committee immediately refer to the U.S. Department of Justice for such action as DOJ deems necessary to the matter involving Representative Santos regarding his knowingly causing his campaign committee to file false or incomplete reports with the Federal Election Commission; use of campaign funds for personal purposes; fraudulent conduct in connection with RedStone Strategies LLC; and knowing and willful violations of the Ethics in Government Act as it relates to his Financial Disclosure Statements filed with the House.
2. The ISC recommends that the Committee authorize the release of materials in possession of the Committee and not available through any other source, to the U.S. Department of Justice, as necessary for any further action DOJ pursues as a result of the referral of this matter.
3. The ISC recommends that the Committee adopt this report, and publicly condemn Representative Santos, whose conduct the ISC found to be beneath the dignity of the office and to have brought severe discredit upon the House.¹⁴

It is important to note that the ISC had different options at the end of its review. It could have adopted a Statement of Alleged Violation (SAV), which is a prerequisite for an adjudicatory subcommittee and a recommendation by the Committee for sanction by the House.¹⁵ It could also have opted not to adopt a SAV. If the ISC did not adopt the SAV which was the case with Santos, it transmits its report to the Committee, summarizing all the evidence, its findings, and its recommendations as provided above in 1-3. As pointed out in Recommendation 2, the materials in possession of the Ethics Committee were provided to the U.S. Department of Justice for its consideration with respect to any further action it was prepared to undertake in addition to the 23-count federal indictment Santos already faced alleging he stole the identities of campaign donors and then used their credit cards to make tens of thousands of dollars of unauthorized charges.¹⁶ Representative Santos pleaded not guilty to all the charges and his criminal trial is scheduled to begin on September 9, 2024, and is anticipated to last at least three weeks.

While the ISC stated that Representative Santos was entitled to due process in his criminal prosecution and would have his day in court, as a member of the House he had to be held accountable to the highest standards in conduct in order to safeguard faith in the institution. The ISC concluded that it was essential for the House, pursuant to the Constitution, to police its own members and therefore the House needed to take whatever action it deemed appropriate in light of its findings.

Within twenty-four hours of the release of the ISC Report, Michael Guest (R-Miss), the Chairman of the House Ethics Committee, filed a Resolution to force a vote on expelling Representative Santos from Congress, despite the fact that the congressman announced that he would not seek reelection. “The evidence uncovered in the Ethics Committee’s investigative Subcommittee investigation is more than sufficient to warrant punishment and the most appropriate punishment is expulsion,” said Representative Guest, who emphasized that he was advocating the expulsion action separate from the committee process and was doing so in his personal capacity as a member of the House.¹⁷

Santos faced two previous expulsion efforts, the first in May, led by House Democrats, though the House voted to refer the Resolution to the Ethics Committee. More recently, in an effort taken in early November, the Resolution was defeated with 213 votes against it, 179 votes for it, including 24 Republicans who voted in favor of expulsion with an additional 19 House members voting present. Three strikes and you are out is the final verdict on Representative George Santos, on December 1, 2023.

The Santos Expulsion

Congress’s power in Article I, Section 5 to make and enforce rules of conduct is a “textually demonstrable commitment”¹⁸ and therefore precludes general superintendence by the judicial branch.¹⁹ This is not to suggest that Congress has exclusive authority under Section 5 to discipline its own members in all situations. Activities may be prohibited by both House rules and criminal statutes, as is the case with Representative Santos, and therefore, he may be subject to sanctions, including expulsion by the House and a prison sentence by the judiciary. It is also significant to recognize that how the House internally allocates its legitimate legislative function in committee and on the floor, is a question beyond the general cognizance of the other branches.

Resolutions that have actually resulted in expulsion from the House suggest that it is absolutely up to the House to decide when to expel, a discretion governed by the requirement that the member is determined to be unfit or unworthy to continue to serve. What constitutes unfitness or unworthiness appears to have been governed, not by a clearly defined standard, but by the determination of a suitable majority of members.

In the case of Representative Santos, the ISC stated that this member’s conduct was determined to be beneath the dignity of the office, and as a result, he brought severe discredit on the House which warranted him to be subject to whatever action the House deemed appropriate in policing its own members although it did not formally recommend expulsion. The Resolution to expel Representative Santos was introduced by Congressman Guest who considered it a most appropriate punishment. It appears the key determinant for the removal of George Santos is his unworthiness to continue to retain his seat. There is little doubt based on the findings and recommendations of the ISC that he would be expelled.

The ISC offered that Representative Santos was entitled to due process in his criminal prosecution and would have his day in court, although it did not specifically suggest that he was entitled to due process safeguards in the House pursuant to Article I, Section 5, Clause 2. Rather the ISC affirmed that as a member of the House he had to be held to the highest standards to safeguard the institution. What needed to be considered is if Santos was removed in the House vote he would be the first lawmaker in House history expelled without having been tried and convicted of a crime. This would have been an unprecedented action, and raised a legitimate concern as to whether Santos would be assured due process safeguards in his criminal trial given his maximum punishment as a member of Congress for this disorderly behavior. Does the End justify the Means used to do so in the case of U.S. House Representative George Santos? Apparently the House, in a bipartisan fashion, voted to do so on December 1, 2023 with a final vote of 311 to 114.

Endnotes

1. In one of the very few pronouncements on the expulsion clause, the Supreme Court reiterated the conclusion rendered in In re Chapman, 166 U.S. 661, 669-70 (1897) finding expulsion proper when misconduct is of a type “inconsistent with the trust and duty of a member” but recognized that an accused member is judged by no specifically articulated standards. United States v. Brewster 408 U.S. 501, 519 (1972)
2. However Congress has at times demonstrated reluctance to expel when misconduct fell short of criminal activity. In 1862, the Senate Judiciary Committee issued a report on the proposed expulsion of James Simmons, stating that although Simmons had received compensation from a private firm for exercising official influence with the Secretary of War to procure orders for the firm and Congress had immediately passed a statute prohibiting such conduct, it would be unfair to expel Simmons since his act “was not punishable or forbidden by any public law . . . .” S. Rep. No. 69, 37th Congress, 2nd Session 3 (1862).
3. See Burton v. United States, 202, U.S. 344 (1906). There have been several occasions where Congress has taken no action despite a member’s conviction. See Congressional Research Service, Actions by the House of Representatives after a member has been convicted. A Reasonably Complete List (1976) (Report to the House Committee on Standards of Official Conduct).
4. See H.R. Rep. No. 76, 94th Congress, 1st Session 2 (1975); H. R. Rep. No. 1477, 94th Congress, 2nd Session 2, 4 (1976).
5. H. R. Rep. No. 1387, 96th Congress, pg. 2 (1980).
6. From Leonard Cutler, Abscam, Congressional Independence and the Separation of Powers Doctrine, Academy of Criminal Justice Science Proceedings, 1982.
7. Skip Loercher, “House gives Traficant the boot,” July 25, 2022, CNN.com.
8. Report, In the Matter of Allegations Relating to Representative George Santos, Investigative Subcommittee (ISC), 18th Congress, 1st Session, U.S. House of Representatives, Committee on Ethics, November 9, 2023, at 12.
9. ISC Report at 6.
10. ISC Report at 9.
11. Ibid.
12. ISC Report at 12.
13. ISC Report at 33.
14. ISC Report at 55.
15. ISC Report at 54.
16. ISC Report at 4.
17. Congressman Michael Guest Statement on Rep. George Santos, Press Release, November 17, 2023, guest.house.gov.
18. Burton v. United States 202 U.S. 344, 367 (1906).
19. Note the Bribed Congressman’s Indemnity from Prosecution, 75 Yale L.J. 335, 345, and n. 83 (1965).

Leonard Cutler is a professor of Political Science at Siena College.