• Show Notes

Dear Reader,

Sometimes, the head and the heart want different things. And the Honorable Messrs. George Santos and Robert Menendez are making it awfully tough to stick to reasoned principle. 

My initial gut reaction to the indictments of both the prevaricating Republican New York Representative and the rapacious Democratic New Jersey Senator was simple: throw ‘em both out. Not the boldest of stances, I concede; the sentiment was nearly universal. 

Santos – infamous for lying about trivial matters like his high school education, his college education, his employment history, his finances, his charitable work, his religion, his family, and, of course, his volleyball prowess – stands indicted by the United States Department of Justice for a spate of audacious frauds aimed primarily at his own campaign donors. Menendez faces his own assortment of federal charges that any Hollywood screenwriter would reject for being too over-the-top: the backroom deals, the wife’s free Mercedes, the wads of cash stuffed into jackets bearing the Senator’s name, the gold bars. 

So what’s the dilemma? Get rid of these crooks. Feels good to say it. 

Of course, it’s up to the respective houses of Congress whether to expel their own members. Article I of the Constitution requires a two-thirds vote of the House or Senate for expulsion. (Of course, either Santos or Menendez could resign, which would be wonderful – but both remain obliviously defiant, blaming their indictments on political and ethnic vendettas by DOJ prosecutors.) 

Despite centuries of congressional malfeasance and corruption, actual expulsion is surprisingly rare. The Senate threw out fourteen of its members during the Civil War for supporting the Confederate rebellion. But since 1862: nothing. A handful of scandals have raised the realistic prospect of Senate expulsion, but the subjects either resigned (hint, hint, fellas) or didn’t garner the necessary two-thirds vote.  

Over in the House, three Reps were tossed out during the Civil War. Since then, the House in 1980 threw out Michael “Ozzie” Myers, a legendary Philly Congressman who was convicted of bribery and other charges in 1981 and did three years in prison. Then, he was again convicted on a separate bribery case in 2022  – that’s right, last year – and the now-80 year-old is back in federal lockup. Most recently, the House tossed out James Traficant of Ohio in 2002, after he was convicted of bribery and other federal crimes.   

It seems neither Santos nor Menendez faces a realistic prospect of getting the boot during the pendency of their indictments. Of course, neither party holds a two-thirds advantage in either the House or the Senate, so expulsion would require significant bipartisan support. And a recent motion to expel Santos – brought by his own Republican colleagues, who clearly are tired of being asked to defend him – failed in the House, with 213 opposed and only 179 in favor. 

But how, one might reasonably wonder, can we allow Santos and Menendez to continue serving in Congress, after federal grand juries found that they committed serious crimes? How can we permit two (likely) soon-to-be felons to vote on pressing matters of war and taxation, of national security and health care policy? Like I said up front: feels better to just kick ‘em out. 

But the problem, of course, is that the same Constitution that gives us the expulsion process also created this pesky “presumption of innocence” precept. Any criminal defendant is, of course, innocent unless and until proven guilty. And, once in a while, an indictee does beat the rap, including some semi-recent members of Congress. In 2008, Alaska Senator Ted Stevens was indicted by DOJ and convicted by a jury, but later investigation uncovered unconscionable prosecutorial misconduct, resulting in dismissal of the case. And, as he often reminds us, Bob Menendez – the one and same – was charged federally with bribery and extortion offenses in 2015, but a jury found him not guilty of some charges, and DOJ dismissed the rest. 

(Quick story about Menendez. In 2017, I was waiting for a friend in the vestibule of Tops Diner in East Newark. For those who have listened to Up Against the Mob, this is the same place where I first met one of my most important mob cooperators; you really do have to live in Jersey to understand the cultural and culinary resonance diners carry here. As I’m standing there, idly checking my phone, I see my home state Senator, Bob Menendez himself, stand up from a booth and pull on his jacket. Now at the time, Menendez was on trial in the federal courthouse in Newark, two miles away from the diner; he had finished his breakfast and was heading over to spend the day in the defendant’s chair. As Menendez walked past, he glanced at me and gave a little nod. I started off fine: “Morning, Senator.” And then I had one of those moments where, as your mouth is saying something, your brain starts to recognize that it’s dumb. “Good luck today,” I brilliantly followed up. He didn’t noticeably react or even break stride. I wasn’t trying to be a wise guy by any means. And I remain unsure of what one should say to a guy on his way to face federal criminal charges. But “good luck today” – that felt a little awkward.) 

When the motion to expel Santos came up last week, I was surprised and impressed by the stand taken by Representative Jamie Raskin, an aggressive, effective, and highly partisan Democrat. (There’s no shame in that; while we don’t want partisan judges or prosecutors, we typically elect our Reps and Senators with a partisan mandate.) Raskin voted against the expulsion measure: “I’m a Constitution guy… This would be a terrible precedent to set, expelling people who have not been convicted of a crime and without internal due process. If and when Santos is convicted of these serious criminal offenses or ethics charges, I will certainly vote to expel him.” 

Raskin is spot-on. Like Raskin, I’m not standing up for Santos and Menendez as individuals, or defending their conduct. I’m more concerned with the bigger picture. After all, a principle isn’t worth anything if you abandon it when it feels icky in its application. 

So as much as it galls me on a gut level, I understand that it’s the right move to leave Santos and Menendez in place unless and until they’re proven guilty. (In the meantime, by all means: strip them of any sensitive committee assignments or other work. And again: both gentlemen should feel fully welcome to quit on their own.) I have little doubt that both will be convicted, or defeated at the ballot box if their next elections precede trial. Both are up for re-election a year from now, in 2024; I’m no political expert, but I don’t like their chances. Until then, it’s not worth scrapping a Constitutional principle to get rid of them. They’ll both be gone, soon enough, and in due course.  

Stay Informed,