U.S. House of RepresentativesBelow is my column within the Hill on the calls for Rep.-Elect George Santos to be denied his seat in Congress this week. Members similar to Rep. Eric Swalwell, D-Calif., have declared that Santos ought to be “banned from taking the oath for Congress.” (Santos has reportedly decided to not run for a second term). Such demands have been heard on various cable networks for weeks without addressing the constitutional barriers to denying a duly elected member from taking a seat. For my part, Santos could prevail in a court fight over being seated if he’s barred attributable to lying about his credentials or background. That doesn’t excuse his conduct. Nevertheless, once more, members and pundits are calling for an motion that’s entirely untethered to constitutional realities.
Here is the column:
In a city that virtually floats on the uplift from inflated resumes, Representative-elect George Santos (R-N.Y.) is a standout. The incoming freshman is accused of a dizzying array of false claims, starting from being Jewish to being a graduate of leading colleges. A bunch of congressional, state and federal investigations are within the works.
The issue is that, for essentially the most part, he’s accused of something that is not any crime in Congress: lying.
Indeed, if lying were criminal, the House could be hard pressed to assemble a quorum outside of a federal penitentiary.
More practically, Santos has constitutional defenses to any effort to bar him from taking his seat to represent Recent York’s third Congressional District.
Santos, 34, appears to have been a virtual false-claims machine.
He claimed he was Jewish and that his maternal grandparents were European “Holocaust refugees.” (They really were from Brazil, and he actually is Catholic.) He claimed to have graduated from Baruch College in 2010 and to have attended Recent York University. He claimed to have lost 4 employees in the Pulse nightclub shooting in Orlando, Fla., in 2016. He claimed he worked for Citigroup and for Goldman Sachs on Wall Street.
None of that appears true — and that is simply a partial list.
Now Santos is the topic of possible investigation in Congress in addition to state and federal investigations. While the federal investigation is reportedly his funds, the opposite investigations seem like premised on the notion that a member of Congress may be denied a seat attributable to running on false claims.
For instance, Nassau County District Attorney Anne Donnelly, a Republican, announced an investigation into “the various fabrications and inconsistencies related to Congressman-elect Santos.” She added that “the residents of Nassau County and other parts of the third district should have an honest and accountable representative in Congress. Nobody is above the law and if against the law was committed on this county, we are going to prosecute it.”
The actual fact, nonetheless, is that no congressional district anywhere within the country is guaranteed “an honest and accountable representative.” The truth is, it often looks like getting a wholly honest politician borders on the random, if not the miraculous.
What many individuals don’t want to confess is that honesty just isn’t a requirement for taking office, as has been proven time and time again. Other current members who ran for office on false claims range from Sen. Richard Blumenthal (D-Conn.), who claimed to have served in Vietnam, to Sen. Elizabeth Warren (D-Mass.), who claimed to have Native American heritage. On the Republican side, former Sen. Mark Kirk (R-Unwell.) was found to have misrepresented his military service, and Georgia Republican senatorial candidate Herschel Walker was accused of misrepresenting law enforcement and academic credentials.
President Joe Biden’s false claims have grow to be the virtual basis of a drinking game in Washington, after he claimed the whole lot from being arrested with Nelson Mandela to graduating at the highest of his class. Those lies, nonetheless, have been treated by the media as “spinning a yarn.”
Even in such company as this, Santos appears to be the Aesop of American political fables. Nevertheless, he should be seated if he’s guilty only of lying about his credentials and background.
Many Santos critics cite the incontrovertible fact that the Structure expressly mandates in Section 5, Article I, that “Each House shall be the judge of the elections, returns and qualifications of its own Members.” Those decisions on the final result of elections have been treated as largely final and non-justiciable. Nevertheless, this case just isn’t an issue over the counting or certification of votes but, relatively, over the claims used to achieve votes.
In 1969, the House voted to stop Rep. Adam Clayton Powell Jr., (D-N.Y.) from taking his seat after he was charged with misappropriation of public funds. An almost unanimous Supreme Court rejected his exclusion, in Powell v. McCormack, and held that the query of seating a member is proscribed to the qualifications stated within the Structure. While a member may be expelled for misconduct as a member, the court held that the seating of a member is governed by the voters and the basic principle, stated by Hamilton, “that the people should select whom they please to manipulate them.”
The Supreme Court also has rejected past efforts to criminalize lying. In United States v. Alvarez, the court struck down the Stolen Valor Act criminalizing false claims of military decorations or medals. A few of us argued on the time that such lies, while reprehensible, are still protected under the First Amendment. The court agreed.
While the Alvarez case involved protecting the integrity of the military and its system of honors, the present investigations of Santos seek to guard the integrity of the electoral process from liars. Yet what ought to be the limiting principle? Is a lie about being arrested with Nelson Mandela or being a police officer enough? What would stop a majority held by the opposing party from isolating any falsehood as a option to retain or increase power?
Furthermore, calls for a referral of Santos to the House Ethics Committee are likely unavailing. The House’s “Code of Official Conduct” is designed to handle misconduct by members, to not impose threshold qualifications to take the oath of office beyond those contained within the Structure.
The investigation by the Justice Department does potentially involve established crimes, if there have been illegal campaign finance violations. Nevertheless, that may take time to determine and, within the interim, Santos should be seated under the Structure.
He will likely be in not-so-good company, after all. There may be a wierd taxonomy of lies. When members lie about laws, policies or actions, we call it “spin.” Even a lie about your qualifications may be treated as a “yarn” in case your vote is required.
Santos has the advantage of holding a seat in a House that Republicans hold by a razor-thin margin and a House Speaker candidate who needs every possible vote — and that is the one variety of truth that prevails in Washington. At the top of the day, whether a sinner or a saint, Santos still holds considered one of those 435 votes.
That’s the reason, in the long run, Santos is prone to prove Will Rogers correct when he said, “You’ll be able to’t idiot all the people all the time. But it surely isn’t obligatory.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Yow will discover his updates online @JonathanTurley.
