George Santos, the Expulsion Power, and Fun with Textualism

The Constitution provides that “[e]ach House may determine the Rules of its Proceedings,  punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This raises a question of interpretation. Does the power to expel turn upon a finding that the Member has engaged in disorderly behavior? In other words, should this sentence be read as if it said “each House may punish and, with the concurrence of two thirds, expel a Member for disorderly behavior”?

A straightforward response would be that if that was what Framers intended, that is what they would have written. Furthermore, if the Framers had meant that the power to expel was a special form of punishment (requiring a two thirds vote), such that the intended meaning was something like “each house may punish a member for disorderly behavior, including by expulsion if two thirds agree,” they would have, at a minimum, placed an additional “and” following “Proceedings,” thus indicating that the clause refers to two powers (one to determine rules and one to sanction violations of those rules), with the latter consisting of the power to punish (or to punish short of expulsion) and the power to expel. Instead, the clause as written suggests that there are three separate powers conveyed: (1) the power to determine rules; (2) the power to punish; and (3) the power to expel. A literal reading of the text, therefore, reveals that expulsion is not limited to disorderly behavior.

I must admit, however, that I have long assumed that the clause was inartfully drafted, and the Framers did not intend to permit expulsion for any reason, while limiting lesser punishments to cases involving disorderly behavior. As Professor Currie notes, “it is hard to imagine why the House should be licensed to employ only the extreme sanction of expulsion, and not lesser penalties, in other cases [not involving disorderly conduct].” David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861, at 218 (2005).

One explanation for this might be the supermajority requirement for expulsion. Because two thirds must concur for expulsion, it might be argued there is less of a need to specify the grounds of offense. It can be assumed that there will rarely, if ever, be a consensus for expulsion unless the conduct clearly merits it. And historically there have in fact been very few expulsions: only five members have been expelled in the House and fifteen in the Senate, with the vast majority being members who supported the Confederacy during the Civil War.

There is a problem with that explanation, though. The draft which came out of the Committee of Detail, before Madison successfully moved to add a supermajority for expulsion, provided: “Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.” 2 The Records of the Federal Convention of 1787, at 180 (Max Farrand ed. 1911). This language is, if anything, more clear than the final text that only the power to punish is limited to disorderly behavior, yet the power to expel in the committee’s draft could be exercised by a simple majority.

Perhaps the best explanation for why the Framers might have specified the offense for punishment, but not for expulsion, lies in the different purposes of these actions. Expulsion was fundamentally a self-protective measure, rather than a punishment, to enable the legislature to rid itself of members deemed unfit to serve. If a member engaged in conduct which did not rise to that level and which did not actually disrupt legislative proceedings (i.e., did not constitute disorderly behavior), it was deemed safe to leave any punishment to normal judicial process.

Ordinarily this makes little difference because “disorderly behavior” is now construed so broadly as to encompass virtually any misbehavior by a member, whether or not it disrupts legislative proceedings or even pertains to the member’s official functions at all. One limitation, however, persists. To my knowledge no member of the House or Senate has been punished for behavior which predated the member’s first election.

That brings us to the matter of George Santos, a first-term member who was indicted yesterday for a variety of financial crimes, including fraud, theft, violation of campaign finance laws and filing of false financial disclosures. Many of these offenses related to his status as a candidate for congressional office in 2020 and 2022, but all of them appear to precede his election to Congress (and certainly precede his being sworn in). It is therefore arguable (though by no means clear) that they do not constitute “disorderly conduct” for which Santos could constitutionally be punished by the House. (To be sure, this argument will be particularly difficult to make for those offenses which could have affected his election, such as filing of false campaign disclosures.) His lawyers can therefore argue that he cannot be expelled for these offenses either.

Because congressional expulsions are so rare, there are probably no precedents directly on point. One case that might be of interest is a 1913 election case involving a member who allegedly engaged in fraud and bribery during the primary and general elections. The Committee on Elections declined to pursue the matter as an election contest, but it suggested that the charges, if proven, could warrant expulsion. It explained that the power of expulsion is “a power of protection” that is “necessary to the safety of the State.” It could be exercised in a wide variety of circumstances, including for a member who is “wholly unfit through some physical disorder or mental derangement,” who commits a crime or is disloyal or engages in any misconduct “in any place and either before or after conviction in a court of law.” The committee concluded that “its extent seems to be unlimited” and is “a matter purely of discretion to be exercised by a two-thirds vote.” 2 Cannon’s Precedents of the House of Representatives §78, at 110 (1935).

While I am not entirely comfortable with the proposition that members can be expelled for any reason (could, for example, Senator Feinstein be expelled on the grounds that she is “wholly unfit” on grounds of mental or physical infirmities?), the textual argument for concluding that expulsion is not limited to disorderly conduct seems to be the stronger one here.

“Nothing I have done as a senator, nothing, has brought dishonor on this institution . . .”

“And I am confident the ethics committee would agree.”

I was struck by these words from Senator Al Franken’s resignation speech (or perhaps semi-resignation speech) today. While Franken is to some extent denying the factual allegations (i.e., groping various women) made against him, the point of this particular line was to stress that he has done nothing “as a senator” to dishonor the Senate. One has to assume that he is saying that even if the allegations against him are true, they would not constitute “improper conduct which may reflect upon the Senate,” as these words are used in S. Res. 338 (2)(a)(1). (Otherwise there would be no reason for the qualification “as a senator” in his statement.).

The Senate Ethics Manual makes clear a senator may be disciplined “for any misconduct, including conduct or activity which does not directly relate to official duties, when such conduct unfavorably reflects on the institution as a whole.” Senate Ethics Manual at 13; see also id. at 432-36 (reviewing conduct found by the Senate to constitute “improper conduct which may reflect upon the Senate” or bring the Senate into “dishonor and disrepute”). But in all of the cases in which the Senate has taken disciplinary action, there has been at least some indirect connection between the misconduct and the senator’s official duties or status.

The most tenuous such connection was in the case of Senator Larry Craig, who was charged with a misdemeanor for soliciting sex in a men’s bathroom at the Minneapolis airport. The Senate ethics committee ultimately issued a letter of admonition to Craig over the incident, in which the committee found that Craig had improperly attempted to use his position to avoid being arrested and charged, and then had improperly attempted to avoid the consequences of his guilty plea.  The committee’s letter to Craig concluded that “[t]he conduct to which you pled guilty, together with your related and subsequent conduct as set forth above, constitutes improper conduct reflecting discreditably on the Senate.” (Yes, the committee used the word “pled,” which apparently means its letter was written by Donald Trump).

Simon Davidson, Roll Call’s ethics columnist, and I debated at the time whether the Craig case involved the first instance of the ethics committee punishing a senator in part for purely personal conduct (i.e., soliciting sex in a bathroom) or whether the committee’s action was dependent on Craig’s subsequent actions which involved conduct at least somewhat related to Craig’s official duties. My view was that the committee was in fact exercising jurisdiction over purely personal conduct, though attempting to downplay that aspect of its action. As I noted, “the committee understandably does not want to be in the business (or advertise that it is in the business) of investigating or punishing sexual misconduct or other common indiscretions by Senators.”

My broader interpretation of the Craig admonishment would support the committee’s exercise of jurisdiction in the Franken case, except for one very important distinction. Craig was a senator at the time he engaged in the misconduct. Franken was not. As mentioned in my last post, the Senate has never disciplined any senator for conduct that occurred before he or she entered the Senate. Moreover, it has on a number of occasions refused to do so precisely because of doubts about its jurisdiction over such matters.

The combination of the personal nature of Franken’s alleged misconduct and the fact that it occurred before he entered the Senate makes it highly questionable whether this is a matter that the ethics committee could even investigate based on past precedent. There is certainly no precedent that would support the imposition of any serious sanction based on the facts alleged, even if they are all true.

Which is perhaps why Franken wanted the matter before the ethics committee in the first place.

The Senate’s Authority to Punish or Expel Roy Moore: A Response to Stan Brand

Former House Counsel Stan Brand has written this article in Politico entitled “Why the Law Might Not Allow the Senate to Expel Roy Moore.” I am working on a longer piece dealing with jurisdictional and prudential limits on the Senate Ethics Committee, but I want to take this opportunity to comment on Brand’s article. In brief, I agree with Brand on the bottom line (i.e., it will be extraordinarily difficult for the Senate to punish, much less expel, Moore for his alleged misconduct), but I think a little more precision with regard to the constitutional and legal issues would be helpful.

Moore, of course, is the Republican candidate in the Alabama special senate election to be held on December 12. For the last month or so (it seems longer), the main issue in that election has been Moore’s alleged sexual misconduct with a number of teenage girls (at least one as young as 14) about 30 years ago. If Moore should win the election, senate leaders have suggested that he will nonetheless have to face these accusations before the Senate itself.

As Brand notes, it is clear that the law does not permit the Senate to “exclude” Moore, that is, to refuse to seat him on the grounds that he lacks the constitutional qualifications to serve in the Senate. Moore has the constitutionally prescribed qualifications (age, citizenship and residency) and so the Senate must seat him.

But the Senate also has the power to punish any senator for “disorderly behavior” and, with the concurrence of two-thirds of the Senate, a senator may be expelled. Brand suggests that these powers may not extend to Moore’s case for three reasons: (1) Moore’s misconduct occurred in a prior Congress; (2) Moore’s conduct occurred before he entered the Senate; and (3) Moore’s conduct was known to the electorate at the time that it (hypothetically) elected him.

The first of these points is not well taken. It is true that there is language in early precedents suggesting that members cannot be punished or expelled for conduct occurring in prior congresses. (Professor Turley alluded to this idea as well). To the extent that this position was ever seriously entertained, it made more sense for the House (all the members of which stand for election every two years) than for the Senate, a continuing body consisting of members elected for six year terms. But in any event, both bodies have long recognized that they can punish or expel members for conduct occurring in prior congresses. House rules, for example, allow its ethics committee to investigate matters going back to the third previous congress and longer if the committee determines the prior conduct is directly related to an alleged violation occurring in more recent congress. House Rule XI (3) (b) (3). The Senate has declined to adopt any statute of limitations at all.

The second point is far more substantial. As far as I know, neither the House nor the Senate has ever disciplined, much less expelled, a member for conduct preceding his or her first election to the legislative body. On a number of occasions, the Senate has declined the opportunity to take cognizance of alleged misconduct occurring before first election. The only question is whether this precedent reflects a jurisdictional limit (i.e., a constitutional limit on the Senate’s power) or merely a strong aversion to using the Senate’s power in such situations. It should also be noted that whether the limit is jurisdictional or prudential, there is some precedent that a senator can waive the limit by asking for an investigation of his own conduct. See Josh Chafetz, Congress’s Constitution 252 (2017) (discussing the 1904 case of Senator Charles Dietrich, who asked the Senate to appoint a committee to investigate allegations that he behaved corruptly in his prior position as governor of Nebraska). This is a point that Moore’s lawyers will want to keep in mind (as perhaps Senator Al Franken’s should have as well).

Finally, Brand’s third point alludes to the “Wilkes principle,” which we have discussed in this blog on prior occasions (see here, here, and here). Essentially, it means that a legislative body should not expel a member for conduct that was fully known to the voters at the time of his or her most recent election. The voters, as Benjamin Cassady puts it, have the power to grant an “electoral pardon” with respect to a candidate’s prior misconduct. See Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209, 218 (2014).

Like Professor Chafetz, I doubt that this limit is jurisdictional in nature. See Josh Chafetz, Democracy’s Privileged Few 210-12 (2007). Although ordinarily it would be “impermissibly undemocratic” for a legislative body to expel a member after his or her constituents have indicated either forgiveness or approval of the conduct in question, the framers of the Constitution declined to prohibit expulsion twice for the same offense. In truly extraordinary circumstances, therefore, it may be permissible for the legislative body to expel a member for conduct known to the voters. In addition, there is always the possibility that “new” information not available to the voters will emerge after the election. At the moment, however, it seems very unlikely that the Senate could expel Moore without violating the Wilkes principle.

In short, while reasonable people can disagree whether the Senate has the constitutional authority to expel (or even punish) Moore for the conduct in question, there can be no doubt that the Senate would have to go well beyond any of its existing precedents to take such action.

Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

Continue reading “Delegate Morrissey and the Voters Who Love Him”

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.

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