The House May Regret Breaking Norms and Precedents to Expel George Santos

The House of Representatives has voted to expel George Santos. We can debate whether or not this was justified, but what is not debatable is that this is unprecedented in all of American history. The House has unquestioned constitutional power to expel any member at any time for any reason, but that sweeping power has long been constrained by norms and precedents against doing so simply on the basis of the House’s own conclusions of wrongdoing by a member. Rewriting those norms and precedents for this case may open a door that Congress will find difficult to close.

American politics has long had an extremely strong norm against removing elected members of the federal government from office absent either a criminal conviction or actual treason. That reluctance goes back to the famous case of John Wilkes, who was expelled from Parliament in 1764 for criticizing the king. Wilkes was in part a free-speech hero, but the scandal of his expulsion made a deep impression upon the Founding generation. As one historian has written, “In the years between 1768 and 1770 no English political figure evoked more enthusiasm in America than the radical John Wilkes.” Consider how this norm has developed in our history:

• As I noted previously regarding Santos, “of the five expulsions in House history” prior to this, “two followed convictions for bribery-related offenses (most recently Jim Traficant in 2002), and the other three were for joining the Confederacy and serving in its military.” Alcee Hastings, who was impeached and removed as a federal judge by an almost unanimous bipartisan vote for taking bribes in 1989, was shortly thereafter elected to the House, and served there for 28 years without a serious effort to remove him even on the basis of a prior congressional finding of impeachable corruption. Gerry Studds was censured, but not expelled, in 1983 for conducting a sexual relationship with an underage congressional page; he served another 14 years. Daniel Sickles was not expelled for gunning down the United States attorney for D.C. district in the street in 1859 over an affair with Sickles’s wife; while Sickles was acquitted by a D.C. jury, there was no doubt or dispute that he had killed the man. William Graves was not expelled for killing another member of the House in a duel in 1838. (I would cite Preston Brooks here as well, but Brooks resigned rather than test whether the House would expel him for beating a senator nearly to death on the Senate floor).
• In the upper chamber, “All 15 expulsions from the U.S. Senate were for treason, 14 of those expelled being Confederates ousted in 1861–62.” The one exception, William Blount, was expelled in 1797 for a conspiracy to hand over Spanish territory in Louisiana and Florida to Britain (a step that would have made it much harder for the United States to later acquire that territory). Ted Kennedy wasn’t expelled for pleading guilty to a crime that killed a woman, after which he served another 40 years in the Senate. Bob Menendez was not expelled after being indicted for corruption, and went on after his acquittal not only to chair the foreign relations committee but also to be indicted again.
• We have, of course, never removed a president or vice president from office; four presidential impeachments have failed, and both Richard Nixon and Spiro Agnew resigned rather than face potential removal.

There is no similar norm at the state level, where governors have been removed from office or recalled by voters during their elected terms, and state legislators get expelled periodically. But even there, expulsions can be controversial enough that Democrats have argued just in the past year that it is a threat to democracy and civil rights even to expel state legislators who incite mobs to obstruct the legislature from doing business.

There is hardly anyone who doubts that George Santos acted unethically and dishonestly in a variety of ways, some of them plainly criminal, and there are ample precedents for censuring him and stripping him of privileges such as committee assignments. That said, Santos has not been convicted of any crime, at least not in any American court or since his election. He has done nothing within the House as damaging to the functioning of the body as Jamaal Bowman pulling a fire alarm (for which he pled guilty to a crime) to delay a House vote. He was not, unlike Menendez, allegedly acting as a foreign agent and accepting bribes from a foreign government in exchange for information while chairing the committee on foreign relations. Expelling him because the House itself concluded that he has committed wrongs is therefore a breach, or at least a rewriting, of precedent. It is terra incognita.

The case for doing so is weaker for a member of the House than the Senate. House members are one of 435 rather than one of 100 and lack a senator’s powers of delay or involvement in treaties and confirmations. They are therefore less powerful. They serve only two years at a time. Madison, in Federalist No. 57, argued that “the restraint of frequent elections” would be the strongest guarantee against misconduct in the House. Santos has already acknowledged that he is not running for reelection, not that he had much prospect of renomination, let alone winning again. The Nassau County Republican Party openly disowned him in January, and eight of the other ten New York Republicans in the House voted to expel him, including his Long Island neighbors Anthony D’Esposito, Andrew Garbarino, and Nick LaLota as well as Staten Island’s Nicole Malliotakis. If an unethical senator is a bigger problem because of having more power and longer terms, an expelled senator is a smaller one because a replacement can be appointed immediately, while a vacant House seat requires a special election — which may take months to hold. In the meantime, the expressed desire of a district representing some 750,000 Americans for representation is thwarted.

We have seen a number of such norms discarded in recent years on Capitol Hill, typically with the Democrats going first. Democrats broke the norms against filibustering judicial nominees, then screamed bloody murder when Republicans retaliated. Later, Senate Democrats abolished the filibuster for nominations, then lived to regret seeing Republicans get three originalists onto the Supreme Court, none of whom got 60 votes in the Senate. House Democrats broke precedents by refusing to seat the Republican choices on the January 6 committee and by voting on a party-line basis to strip Marjorie Taylor Greene of committee assignments, and had to endure proportional retaliations against Eric Swalwell, Adam Schiff, and Ilhan Omar. The potential for escalations can have many applications, from Democrats breaking Senate rules to issue subpoenas yesterday without giving Republicans a chance to speak, to Oregon Democrats attempting to disqualify nearly the entire Republican state senate caucus in their state from seeking reelection.

The problem with expelling Santos based on a House committee finding rather than a court conviction is not an absence of due process. While House investigations do not offer quite the same process as a criminal trial, the House is entirely competent to hold hearings and make findings of fact, as it does in multiple contexts — including censures and other internal punishments. But the advantage of waiting for a conviction before taking the step of expulsion is that it outsources the decision, so that it is not made within the context of the jockeying for partisan control that exists within the House. Now that the House has taken that step, we should not be surprised to see the norm crumble further, and expulsions on party-line votes become more common. That is likely to be a further step down the same path that has made our Congress ever more divided and dysfunctional. Is George Santos worth that?