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Michael Grimm, John Wilkes and the House’s Power to Punish for Conduct Preceding Election

It is being reported that Representative Michael Grimm has agreed to resign his seat in the next Congress. Grimm was indicted on multiple federal charges in April, was reelected handily in November and last week pled guilty to a single count of tax fraud stemming from his ownership and management of a health food restaurant before his initial election to Congress in 2010. Grimm initially indicated that he would not resign, but he apparently changed his mind after a heart to heart with Speaker Boehner.

I have been looking into some of the legal issues that the House would have faced had Grimm decided to remain in Congress. Since these may now be moot, I will just briefly list the three major problems the House would have encountered in trying to discipline or expel Grimm for the offense to which he pled guilty.

The most fundamental relates to the House’s power to discipline or expel a member for conduct preceding his election to or service in Congress. The Supreme Court declared in 1969 that “[o]n several occasions, the House has debated whether a member can be expelled for actions taken during a prior Congress, and the House’s own manual of procedure applicable in the 90th Congress states that ‘both Houses have distrusted their power to punish in such cases.’” Powell v. McCormack, 395 U.S. 486, 508 (1969).  To the extent that this implies that House precedent precludes punishment or expulsion for official misconduct committed in a prior Congress, this was at best an exaggeration in 1969 and seems pretty clearly wrong today. House rules, for example, authorize the Ethics Committee to investigate alleged violations in the prior three Congresses (and even earlier, if the violation is directly related to an alleged violation in a more recent Congress). House Rule XI (3)(b)(3).

The situation is different, however, with respect to violations that precede a member’s first election to Congress. I am not aware of any case where a member of the House was disciplined, much less expelled, for actions taken before actually serving in Congress. Moreover, there is House precedent suggesting that the House’s power does not extend to such situations. In 1925, for example, a Select Committee noted: “Without an expression of the individual opinions of the members of the committee, it must be said that with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member, not even for conviction for an offense. On May 23, 1884, Speaker Carlisle decided that the House had no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected a Member, and added, ‘That has been so frequently decided in the House that it is no longer a matter of dispute.’” 2 Cannon’s Precedents § 238.

In a more recent case, the Ethics Committee recommended against taking action to expel a Member who had been convicted of taking bribes while serving as a state official prior to his election to Congress, although the committee did not go so far as to suggest that the House was without constitutional power to act if it so chose. See H. Rep. 94-1477, In the Matter of Representative Andrew J. Hinshaw (Sept. 7, 1976).

The second problem relates to the nature of the offense. No doubt if Grimm had engaged in tax evasion while serving in Congress, he could have been punished for conduct that brought discredit on the House. But employing the very rarely used remedy of expulsion (only five House members have ever been expelled) for an offense that did not directly relate to his official duties would seem to be a stretch. Similarly, to the extent that there are extraordinary circumstances that might justify disciplining or expelling a member for conduct before his election (election fraud or corruption comes to mind), it is doubtful that Grimm’s conduct would qualify.

Finally, there is the fact that Grimm’s constituents reelected him despite more or less full knowledge of the indictment against him (which, not surprisingly, his opponent brought up repeatedly). The facts of the case demonstrate the difficulty of making the “Wilkes rule” or “electoral pardon” into an inflexible command. Presumably Grimm’s constituents received new information when he pled guilty and no one can say definitively whether this information might have changed their votes. But House precedent suggests that there would at least be a strong presumption against expelling Grimm under these circumstances. As this article in Salon notes: “Maybe the people of Staten Island like him and don’t care that he cooked the books at his restaurant!” The case of John Wilkes casts a long shadow even today.

This is not to say that Grimm would have been home free had he decided to remain in office. There undoubtedly would have been an ethics investigation, particularly with regard to Grimm’s acknowledgment that he lied about the facts of his tax evasion during a civil deposition in 2013 (whether lying in a civil case is sufficient to warrant removing an elected official from office would be a subject not entirely new for the House). He would have been stripped of his committee assignments and faced potential sanctions if he tried to vote on the floor (though the constitutionality of such sanctions seem dubious to me). If he were ultimately sentenced to a significant prison term for his crime (sentencing is not to take until June), he almost certainly would have faced a choice between resignation and expulsion.

But the House would probably not have been able to expel Grimm between now and June. So I am sure no one is more grateful than the incoming chair of the Ethics Committee that the Speaker prevailed upon Grimm to resign.

 

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