Below is my column in the Hill on the calls for Rep.-Elect George Santos to be denied his seat in Congress this week. Members such as Rep. Eric Swalwell, D-Calif., have declared that Santos should be “banned from taking the oath for Congress.” (Santos has reportedly decided not to 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. In my view, Santos could prevail in a court fight over being seated if he is barred due to lying about his credentials or background. That does not excuse his conduct. However, once again, members and pundits are calling for an action that is 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, ranging from being Jewish to being a graduate of leading colleges. A host of congressional, state and federal investigations are in the works.
The problem is that, for the most part, he is accused of something that is no crime in Congress: lying.
Indeed, if lying were criminal, the House would 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 New York’s 3rd 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 actually were from Brazil, and he actually is Catholic.) He claimed to have graduated from Baruch College in 2010 and to have attended New York University. He claimed to have lost four 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 only a partial list.
Now Santos is the subject of possible investigation in Congress as well as state and federal investigations. While the federal investigation is reportedly looking at his finances, the other investigations appear to be premised on the notion that a member of Congress can be denied a seat due to running on false claims.
For example, Nassau County District Attorney Anne Donnelly, a Republican, announced an investigation into “the numerous fabrications and inconsistencies associated with Congressman-elect Santos.” She added that “the residents of Nassau County and other parts of the third district must have an honest and accountable representative in Congress. No one is above the law and if a crime was committed in this county, we will prosecute it.”
The fact, however, is that no congressional district anywhere in the country is guaranteed “an honest and accountable representative.” In fact, it often seems like getting an entirely honest politician borders on the random, if not the miraculous.
What many people do not want to admit is that honesty is not 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-Ill.) was found to have misrepresented his military service, and Georgia Republican senatorial candidate Herschel Walker was accused of misrepresenting law enforcement and educational credentials.
President Joe Biden’s false claims have become the virtual basis of a drinking game in Washington, after he claimed everything from being arrested with Nelson Mandela to graduating at the top of his class. Those lies, however, 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 must be seated if he is guilty only of lying about his credentials and background.
Many Santos critics cite the fact that the Constitution 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 outcome of elections have been treated as largely final and non-justiciable. However, this case is not a question over the counting or certification of votes but, rather, over the claims used to gain votes.
In 1969, the House voted to prevent 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 question of seating a member is limited to the qualifications stated in the Constitution. While a member can be expelled for misconduct as a member, the court held that the seating of a member is governed by the voters and the fundamental principle, stated by Hamilton, “that the people should choose whom they please to govern 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. Some of us argued at 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 current investigations of Santos seek to protect the integrity of the electoral process from liars. Yet what should 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 way to retain or increase power?
Moreover, calls for a referral of Santos to the House Ethics Committee are likely unavailing. The House’s “Code of Official Conduct” is designed to address misconduct by members, not to impose threshold qualifications to take the oath of office beyond those contained in the Constitution.
The investigation by the Justice Department does potentially involve established crimes, if there were unlawful campaign finance violations. However, that will take time to establish and, in the interim, Santos must be seated under the Constitution.
He will be in not-so-good company, of course. There is a strange taxonomy of lies. When members lie about laws, policies or actions, we call it “spin.” Even a lie about your qualifications can be treated as a “yarn” if your vote is needed.
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 this is the only type of truth that prevails in Washington. At the end of the day, whether a sinner or a saint, Santos still holds one of those 435 votes.
That is why, in the end, Santos is likely to prove Will Rogers correct when he said, “You can’t fool all of the people all of the time. But it isn’t necessary.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.