Dear Reader,

Only politics will rid us of George Santos. The law can spur things along, but ultimately Santos’s survival as a member of Congress will come down to political will, and the tolerance of House Republicans for political shame (and just plain old human shame).

I’ve buried the lede a bit there, so let’s double back: we currently have a member of the United States House of Representatives who is a real-life combination of Irwin Fletcher and  You’re familiar by now with Santos’s still-unraveling web of lies about minor matters like his high school education, his college education, his employment history, his religion, his finances, his charitable work, his ethnicity, his family’s history as Holocaust victims, and his mother’s death. But, really: just those things. No biggie.

I must admit, I’ve enjoyed the reactions of Santos and those who refuse to condemn him. In an interview on Matt Gaetz’s podcast (which, apparently, exists), Santos explained his personal finances thusly: “Well, I’ll tell you where it didn’t come from, it didn’t come from China, Ukraine, or Burisma, I’ll tell you that.” After offering up a pity chuckle, even Gaetz, that modern-day Cronkite, felt compelled to follow up. Santos stammered out this banger of a response: “Look, I’ve worked my entire life, I’ve lived an honest life, I’ve never been, uhhh, accused, sued, of, of, any, umm, bad doing. So, you know, it’s my, it’s the equity of my hardworking, huh, self, and I’ve invested inside of me.” Well, then: question answered.

And when asked directly for his views on Santos, House Speaker Kevin McCarthy offered up this gem: “You want to bring up Santos, and let’s talk about the institution itself, because I agree wholeheartedly that Congress is broken. And I think your listeners or viewers should understand what proxy voting was because it never took place because it never took place in Congress before.” This is what lawyers call “non-responsive” and normal people call “a mountain of horsecrap.” (The interviewer tried several more times to elicit an actual answer, but McCarthy remained stubbornly off-point.)

Through it all, this hard truth remains: George Santos has the same number of votes in the House as Nancy Pelosi, or McCarthy, or your own district’s representative. He can vote on taxation, health care policy, voting rights, and whether we go to war.

As absurd as this situation is, the law won’t save us here – not on its own. Some of the accountability mechanisms that apply to other officials don’t work against wayward members of Congress. U.S. Senators and Representatives cannot be impeached. Nor can they be recalled by the voters.

In fact, the only way to remove a member of Congress is through expulsion; Article I of the Constitution provides that either the Senate or the House can throw out their own members upon a two-thirds vote. Yet for all the malfeasance over history of the House, it has only expelled a grand total of five members, ever.

Three were Confederates who got the boot shortly after the Civil War. The fourth was Michael (Ozzie) Myers, a Pennsylvania representative who got busted in the Abscam bribery scandal in the 1970s, tossed out of Congress in 1980, and then, for good measure, convicted in 2020 on a separate bribery and fraud case; he was recently sentenced to two-and-a-half years in federal prison. (I have a few friends from Myers’s district who take perverse pride in his historical legacy; it’s a Philly thing.)

The most recent recipient of the Congressional heave-ho was James Traficant, an Ohio representative who was convicted of racketeering, bribery, tax fraud, and other offenses, and expelled in 2002. The vote count on his expulsion was 420-1, so I assumed the lone holdout was Traficant himself. I was wrong; Traficant didn’t vote at all. The lone “No” vote was in fact cast by Rep. Gary Condit of California, who you might remember as the Congressman who allegedly had an affair with an intern, Chandra Levy, who went missing in 2001 and was found dead in a park in D.C. in 2002. Isn’t history something?

Might Santos join this select group in infamy? We’d need 290 representatives to reach the two-thirds threshold. Start with all 213 House Democrats, and then you just need 77 Republicans. Sounds like it should be attainable, given the extent of Santos’s dissembling – but it’s not, at least not at the moment. Speaker McCarthy enjoys a precarious margin – five seats total – and he’s simply not going to cough one up, even if it’s held by the real-life Prospero.

Well, you might wonder, what if Santos is charged with a crime? Surely, the law doesn’t permit a person to serve in the United States Congress while under indictment, a perfectly reasonable person might think. But that perfectly reasonable person would be perfectly wrong. There’s nothing in the law that prohibits a criminal defendant from sitting in the Senate or House. In fact, the law doesn’t bar a person who has been convicted of a federal crime from serving in Congress. We could even have a Senator or Representative serving his constituents from a prison cell, in theory.

And it’s starting to look increasingly as if Santos could wind up at a defendant’s table, someday. We know that various prosecutors at the state and federal level have opened investigations into Santos; while it’s not a crime to lie to the American public during a political campaign (imagine if it was…), serious questions have arisen about how Santos made his money in the first place. Most recently, we have learned that the FBI is looking at Santos’s role in a GoFundMe scheme involving a veteran’s dying service dog. (At the risk of excessive repetition, I’ll say it again: yes, this is real.)

Federal prosecutors in Brooklyn also are probing Santos’s role in a shady investment firm that the Securities and Exchange Commission has branded a “classic Ponzi scheme.” Notably, prosecutors have asked the Federal Election Commission to stand down on any enforcement action until completion of the criminal investigation. This is what real prosecutors do when they are serious about making a case and don’t want crossed wires or other complications caused by another set of investigators poking around. (I wrote here about how Attorney General Merrick Garland failed to do this in the January 6 investigation, to his own detriment.)

Even if Santos is indicted, convicted, and imprisoned, he still can remain in Congress until they get the two-thirds majority necessary for expulsion. Here’s where the law and politics intersect. Thus far, McCarthy and others have chosen to turn a blind eye to Santos, hold their breath, and count his vote. But they’re taking on political damage. Every time a McCarthy presser is derailed by questions about Santos that he needs to dodge, he has to feel a bit of a sting; I’m taking a hit for this guy? If an indictment drops, that might just be too much even for McCarthy to bear, just to preserve one House vote.

I’ve increasingly come around to a holistic view of the law. I believe in the big principles and I believe in (or at least aspire to) most of the cliches about blind justice and the like. But I also appreciate the importance of real-world practical factors. Often, it turns out, politics can influence the law. In this case, we might well see the converse, where enforcement of the law could force the political issue. That’s the only real chance we have to promptly eject Santos – a malignant liar and a pathetic fool – from our public square.

Stay Informed,

Elie

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