George Santos, the New York Republican who fabricated huge swaths of his résumé and life story prior to his election, is officially a member of Congress.
Santos, whose district includes part of Long Island and Queens, and his fellow lawmakers were sworn in early Saturday once new Rep. Kevin McCarthy was elected speaker on the 15th vote, clearing the way for the rest of the House to be seated.
Santos took his seat despite facing sustained pressure from Democrats and constituents to step aside, even getting the cold shoulder at times from fellow state Republicans.
But there is little politicians or voters can do to prevent him from remaining in office — unless Democrats and a good number of his fellow Republicans in Congress are willing to expel him.
Here’s a look at what could — and could not — happen next as Santos officially takes his seat in office:
Can Santos be recalled?
The general consensus is no.
New York is not among the 30 states with a mechanism for citizens to recall an elected official on the local level, or the 19 states where you can recall state officials, according to the National Conference of State Legislatures.
But it likely wouldn’t matter even if New York did allow recall elections. The U.S. Constitution doesn’t explicitly allow for recall of federal lawmakers.
The Constitution lays out three specific eligibility requirements to serve in Congress: You have to be 25 years old, you have to be a U.S. citizen for at least seven years, and you have to be an inhabitant of the state you’re elected in.
Various attempts by other states to add on to those eligibility rules — or recall congressional representatives — have been rejected by the courts, according to Jerry Goldfeder, a New York election attorney who wrote an analysis in the New York Law Journal last month. That includes the state of Arkansas, which tried to implement term limits but was shot down by the U.S. Supreme Court, and New Jersey, where the state’s top court ruled a 2010 attempt at recalling U.S. Sen. Robert Menendez was unconstitutional.
Santos admits he lied about certain facts of his biography. Is that a crime?
No. The reality is that candidates and politicians sometimes lie about themselves and their policies. While such falsehoods may stir outrage as they did in the case of former President Donald Trump, they are generally protected under the First Amendment.
Andrew Weissmann, a former U.S. Department of Justice prosecutor who led the investigation into Russian interference in the 2016 presidential election, said one obvious offense by Santos — lying to voters — is something he can’t be charged with.
“In many ways, there’s voter fraud that happened, which is that he represented himself to his voters as something that he’s not,” Weissmann said.
In many ways, there’s voter fraud that happened, which is that he represented himself to his voters as something that he’s not.
But that is not something that is chargeable, he said. Rather, making false statements to voters is viewed as something that legal experts consider a “political question,” meaning it’s subject to people making decisions through the electoral process.
Could the House of Representatives have refused to seat Santos?
No, and a decades-old Supreme Court case involving a Harlem power player is to thank for that.
In 1967, the House of Representatives voted to block Rep. Adam Clayton Powell Jr. from taking his seat after he won re-election the prior November. At the time, Powell — the first Black man to represent New York in Congress — was in the midst of numerous scandals, including for refusing to pay a court-ordered defamation penalty for publicly accusing one of his constituents of having mob ties.
Powell sued over his ouster, and in 1969, the Supreme Court agreed with him — ruling the House couldn’t block a member from taking office, so long as they met the eligibility requirements for serving in Congress. (By this point, it was something of a moot point: Powell won a special election later in 1967 to take back his seat.)
So what are the potential charges that could arise?
While Santos may not be on the hook for lying to the public, he can face criminal and civil fraud charges for lying on documents submitted to government entities and investors.
He is reportedly facing multiple investigations at the federal and local level, in addition to one by Brazilian law enforcement officials who recently reopened a 2008 fraud case against him.
Depending on whether wrongdoing is discovered, they could lead to charges related to wire fraud and mail fraud, tax and money laundering crimes and in the Brazil case, extradition, according to Weissmann.
Making false statements on filings with the Federal Election Commission, for example, could result in campaign finance charges. The New York Times reported last month that Santos’ campaign logged unusual expenses, including $40,000 in air travel costs. And according to Newsday, the FEC has flagged issues surrounding some of Santos’ donors.
Prosecutors are also likely to be interested in how Santos accumulated enough personal wealth to donate more than $700,000 to his campaign. Those investigations could determine whether he may have committed any financial and tax crimes. Making false statements about his business in order to raise money from investors could also result in mail and wire fraud charges.
According to the Times, Santos said on financial disclosure documents that his company, the Devolder Organization, is worth more than $1 million and millions in earnings and dividends. The exact source of these funds is unknown.
Haven’t some of Santos’ colleagues called for a House ethics investigation?
Yes, one of the first members of New York’s Republican congressional delegation to call for a House ethics investigation was Nick LaLota, a new member from the 1st district on the east end of Long Island.
The House ethics committee can only pursue an investigation based on complaints filed by other House members.
But it’s still unclear how much of an appetite for overall ethics oversight the new Republican majority has as it waits to be sworn in. There are reports that several GOP House members want to limit the authority of the independent Office of Congressional Ethics (OCE), which was established in 2008 and has long faced Republican opposition, according to The Washington Post.
The OCE was created to provide additional independent oversight of Congress. Unlike the House Ethics Committee, the OCE is able to receive complaints of misconduct from the public. Based on its review process, the OCE can make referrals as warranted to the House ethics committee for further investigation and possible sanctions.
How could the House of Representatives punish Santos?
They could take steps to expel, censure or reprimand him, among other penalties, if the Republicans are willing to punish a member in their very slim majority.
Under the Constitution, Congress has significant power to punish its members for behavior that violates the law or House rules. Members can face a range of punishment. The most extreme is expulsion, which requires a vote by two-thirds of the members present in that respective chamber. But it’s a step that is rarely taken out of deference to the voters who elected the representative.
Only five members of Congress (and 15 U.S. Senators) have ever been expelled. Three of those removed from Congress were kicked out for fighting for the Confederate South in the Civil War.
In 1980, the House voted to expel Democrat Michael J. Meyers of Pennsylvania after he was convicted of taking bribes in connection with the ABSCAM scandal, a notorious FBI investigation into congressional influence peddling and organized crime (which also served as inspiration for the 2013 film “American Hustle”).
Then in 2002, the House expelled James A. Traficant, a Democrat from Ohio, who was convicted at trial as the The New York Times explained because “he had run his Congressional office as a racketeering enterprise, seeking bribes from business executives for government favors and demanding salary kickbacks and manual labor from his staff.”
The House could also opt to censure Santos. That step requires a majority vote and would require him to stand before Congress to hear the charges publicly read against him. Two dozen members of Congress have been censured. It’s a public rebuke that stops short of removal.
The two most recent cases were in 2021 when the House censured Arizona Republican Rep. Paul Gosar after he posted an animated video showing him killing Rep. Alexandria Ocasio-Cortez and assaulting President Joe Biden.
Before that, in 2010 Rep. Charles Rangel of Harlem was censured by his colleagues after a House panel found him guilty on 11 ethics violations. At the time, a handful of his colleagues argued that the censure was the wrong punishment, and instead Rangel should only be “reprimanded.”
The current use of the term “reprimand” is relatively recent, according to the House historian, “following the creation of a formal ethics process in the late 1960s.” It is another, less severe potential punishment House members could administer after members approve a resolution by a majority vote.
Could Santos still serve if he’s charged with a crime?
Republicans would likely be motivated to force out a member of their party who is criminally charged although indicted members can continue to serve. In the past, members of Congress who have faced or been convicted of criminal charges have faced pressure to resign.
But there have been some notable holdouts.
In 2014, Staten Island Rep. Michael Grimm won re-election while he was under federal indictment for fraud charges. A Republican, Grimm initially said he would not resign even after he pleaded guilty to tax evasion. But two weeks later, he agreed to step down.
In another prominent case, Charles Diggs, a Democrat from Detroit, continued to serve in the House in 1979 even after being convicted of mail fraud and kickback charges after Democrats narrowly defeated a Republican motion to expel him. House members instead voted unanimously to censure him. He resigned a year later before going to prison.
What happens if Santos resigns?
Gov. Kathy Hochul would call a special election to fill the vacancy, as required by the Constitution and state law.
The governor has discretion to set the date, but she has to follow specific rules: It would have to be between 70 and 80 days from when she issues a proclamation setting the special election, which she has to do within 10 days of the vacancy.
Most recently, it happened last year when then-Rep. Antonio Delgado stepped down to become lieutenant governor after Hochul’s first pick, Brian Benjamin, resigned while facing federal corruption charges. Pat Ryan, a Democrat, won the special election to replace Delgado.