Philippa Kaur

There are mounting calls from both politicians and voters to force the newly elected apparent fabulist U.S. Rep. George Santos from Congress following revelations he fabricated his background and other details of his life.

But New York’s 3rd Congressional District voters, who elected Santos as their representative in November 2022, cannot directly force him out of office until the next election, in November 2024.

It appears that Santos, who beat Democrat Robert Zimmerman during the 2022 midterm election, has woven a web of lies about his personal and professional background, some of them touching on on major historical and tragic events. Santos falsely claimed, for example, to have Jewish ancestry and said that his maternal grandparents fled to Brazil during the Holocaust. He also said that the Sept. 11, 2001, terrorist attacks seemingly “claimed” the life of his mother – who actually died in 2016.

Santos said he graduated from Baruch College in the top 1% of his class and from NYU’s Stern School of Business – but he never attended either institution, nor did he graduate from college.

He also lied about his work experience, falsely claiming Citigroup and Goldman Sachs as former employers.

Santos has since admitted to embellishing parts of his résumé and said that he has not worked for CitiGroup or Goldman Sachs – and does not have a college degree.

Although a local weekly newspaper raised questions about his background in September, the story did not gain traction until The New York Times published its own story in December 2022. If the voters had known about these lies before the election, Santos might have lost.

As a scholar of constitutional law and public policy, I think it is important to understand that voters have limited options at this point. Forty states provide for the recall of state and local elected officials. But there is no federal recall law that could lead to the removal of someone like Santos from Congress.

George Santos and other members of Congress are sworn into office on Jan. 7, 2023.
Elizabeth Frantz/For The Washington Post via Getty Images

There are few federal options to remove Santos

The Nassau County Republican Committee and other local offices in Santos’ Long Island district are calling for him to step down. Several Republican House members have joined the chorus.

Santos, meanwhile, has said that he will not resign.

“I was elected by 142,000 people. Until those same 142,000 people tell me they don’t want me, we’ll find out in two years,” Santos recently said.

He may be right.

The Constitution says that members of Congress can be impeached and removed for treason, bribery or other offenses. The Constitution does not specify grounds for expulsion – or actually removing someone from office – leaving that to each chamber of Congress to determine.

The Constitution also says nothing about recall elections.

The Supreme Court has also never specifically addressed the legality of a federal recall, but two other rulings suggest that such a law would be unconstitutional. The court first determined in 1969 that Congress may not refuse to seat a duly elected member who meets the constitutional qualifications for office. And it also ruled in 1995 that states may not impose term limits on members of Congress, because that would add an additional qualification for membership beyond the citizenship, age and residency requirements mentioned in the Constitution.

Even if a federal law authorizing the recall of members of Congress were adopted and survived a legal challenge, the legislative and legal processes would consume virtually all of Santos’ two-year term. So recalling Santos is not a promising option, even if it were legal.

Critics might also try to get the House to expel Santos. But expulsion is exceedingly rare. The House has expelled only five members in its entire history, most for joining the Confederacy during the Civil War.

Ethics concerns are at play, though

Santos would not be committing any crime simply by telling lies. Maybe he did other things that violated the law – state, federal and Brazilian authorities are currently investigating whether he used campaign funds for personal expenses, and whether he committed fraud in Brazil by using someone else’s checkbook to pay his bills.

But Santos will not automatically lose his office even if he is convicted of any crime. The House does not require members to forfeit their office in those circumstances – or even if they go to prison.

Santos’ case, however, does raise ethics concerns that members of Congress can address. Two House Democrats from New York have filed ethics complaints against Santos with the House Ethics Committee regarding incomplete financial disclosure forms.

This bipartisan committee investigates alleged law violations by Congress members and makes recommendations to the full House. Ethics Committee recommendations are not legally binding. The House itself must consider them, though. In any event, this process probably would extend far into or beyond Santos’ term.

Santos might also resign if the Ethics Committee recommended his expulsion. That has happened on several occasions. In 1986, Sen. Harrison Williams resigned when facing an Ethics Committee’s recommendations that he be expelled because of corruption. In 1995, Sen. Robert Packwood left his post for the same reason.

Rep. Mario Biaggi of New York also stepped down before an expulsion vote in 1988.

Voters in Garden City, New York, vote in October 2020.
Chris Ware/Newsday via Getty Images

No clear exit ahead

In short, Santos would be able to serve most or all of his term even if the House did ultimately vote to expel him. But there are additional complications. The Constitution requires a two-thirds vote to expel a member of Congress. Such a supermajority is unlikely, especially in a House with a narrow majority in which every vote counts and when Republicans might be hard-pressed to win a special election to fill Santos’ vacancy.

Voters who are appalled by George Santos’ apparent lies have little direct leverage to force him out of office quickly. Their first and best opportunity will come in 2024 if Santos decides to seek another term. Voters could defeat him in the Republican primary, where he surely would face opposition. And if he somehow survived the primary, he would still have to face a Democrat in the general election. More

Attorney General Merrick Garland has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President Donald Trump handled classified documents after leaving office – Biden after he ended his terms as vice president in 2017, and Trump after leaving the Oval Office in 2021.

Robert Hur, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. Jack Smith, a longtime top investigator in the Department of Justice, is overseeing two criminal investigations into former President Donald Trump.

Garland’s goal, in both cases, is to shield the probes from the appearance of partisanship.

But in immediate and repeated attacks, Trump, and some of his allies, alleged political bias anyway. For instance, in one highly charged social media post, the former president argued that he won’t “get a fair shake” from Smith.

Biden, for his part, has said he is “cooperating fully and completely” with the Justice Department’s inquiries.

Fairness and justice, though, are what Garland appointed Smith and Hur to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the Jan. 6 insurrection and Trump’s handling of classified government documents, Garland described Smith as someone who “has built a reputation as an impartial and determined prosecutor.”

When appointing Hur, Garland emphasized his “department’s commitment to both independence and accountability in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”

In his own statement, Smith, who most recently investigated and prosecuted war crimes at the International Criminal Court in The Hague, promised to “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”

From my perspective as a political scientist who studies presidential systems, I believe that while special counsels are intended to be independent, in practice they are aren’t entirely. Here’s why.

Special Counsel Jack Smith, examining Trump’s actions.
AP Photo/Peter Dejong, Pool

Special Counsel Robert Hur, examining Biden’s actions.
AP Photo/Steve Ruark

Independent and special counsels

Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is appointed by – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President Richard Nixon did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.

On the evening of Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork, the next most senior official at the Department of Justice, to fire Cox. Bork complied.

This shocking series of events, often referred to as the Saturday Night Massacre, demonstrated how presidents could exercise political power over criminal investigations.

As a result of the Watergate scandal, Congress passed the Ethics in Government Act of 1978. This allowed for investigations into misconduct that could operate outside of presidential control.

After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other high-ranking executive branch officials had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, who would investigate.

The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest, or the appearance thereof.”

In the decades since the law’s passage, independent counsels investigated Republicans and Democrats alike. In 1999, Congress let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno authorized the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.

Robert Mueller, who was appointed in 2017 by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government, was a special counsel. Some Republicans accused him of bias, despite his long career serving under both Democratic and Republican presidents.

In 2020, John Durham – another veteran of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of political prosecution. Sussmann was later acquitted.

Politicizing the process

Although special counsels were meant to resemble independent counsels, there are notable differences.

For instance, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice of the United States.

Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or end a special counsel investigation.

For example, at one point, Trump wanted to fire Mueller. After his attorney general, Jeff Sessions, who had recused himself from the Russia probe, did not “end the phony Russia Witch Hunt,” Trump fired him.

Seemingly supportive of this, William Barr, who had served as attorney general under President George W. Bush, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding.”

Unsurprisingly, Trump then chose Barr to replace Sessions as attorney general.

In my own research, I have found that abuses of power are more common in situations in which the president and the attorney general are political allies.

For instance, after Mueller finished his report in 2019, Barr released a summary of its “principal conclusions.” Later, Barr’s summary was criticized for “not fully captur[ing] the context, nature, and substance” of Mueller’s work.

In 2020, a Republican-appointed judge ruled that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”

To be or not to be free of partisanship

The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.

Trump, for example, saw himself as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.”

Meanwhile, Biden has a long history of supporting the independence of Department of Justice investigations, dating as far back as his 1987-1995 tenure as chairman of the Senate Judiciary Committee.

Barr once argued that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.”

In contrast, Garland – a former U.S. circuit judge – insists that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

Given that Trump and Biden may end up facing off in 2024, it makes sense that Garland would want to appoint special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.

Still, Smith and Hur will not be entirely independent of Garland, just as Garland is not entirely independent of Biden.

This is an updated version of an article originally published Dec. 14, 2022. More

Editor’s note: This article was published prior to a 15th vote in the House of Representatives that saw Rep. Kevin McCarthy of California elected as House Speaker in the early hours of Jan. 7, 2023. It still has lots of super interesting information and analysis in it though, so please do read on.

It is fair to say that the beginning of the 118th U.S. Congress has not gone entirely to plan.

In the space of four days, members-elect of the House of Representatives have held more than a dozen votes over who would take on the role of speaker. Yet, as of Jan. 6, 2023, the position remains unfilled.

As a result, representatives have not been sworn in to start the job they were elected to do. The sticking point: A dwindling group of holdout conservatives in the GOP are refusing to toe the line and fall behind the party leadership’s preferred candidate, Rep. Kevin McCarthy of California.

The Conversation had a plethora of questions over what this means for governance, and the authority of the speaker – whoever that may be. So we put them to Rachel Paine Caufield, an expert on all thing Congress at Drake University.

Can the House do any other business while there is no speaker?

In short, no. The only business being done in the U.S. House of Representatives at the moment is voting for the role of speaker.

No other business can proceed until a speaker is in place. And this is for one very simple reason: No representatives can be sworn in until there is a speaker. So right now we have no formal representatives serving in the House of Representatives, and as a result no one has the legal authority in the House to carry out the work of government.

Other usual House activity, such as briefings on issues including security, is also not happening. Would-be representatives can’t be briefed yet because they have not been sworn in.

They can still meet with constituents. But they can’t make any formal request of government, because they are just representatives-elect until they are sworn in – and that applies to both new members of the House as well as returning members.

Does it affect the Senate?

The Senate can still operate, and there are certain things the Senate alone is responsible for, such as ratifying treaties and confirming judicial nominees.

But any legislation needs to go through both the Senate and the House – so no laws can be passed until a speaker is in place.

Can unofficial business be done in the House?

Certainly representatives are meeting while this situation is going on. My guess would be that the Democrats – who are unified in their support of Hakeem Jeffries as their nominee for speaker – are having conversations about future legislative activity.

GOP conservative holdouts Lauren Boebert and Matt Gaetz (right).
Mandel Ngan/AFP via Getty Images

For the Republicans, the priority right now is how to navigate this impasse over the speaker position. But don’t think that some of those discussions are not also about legislation. The holdouts in the GOP are looking for concessions on things such as term limits for representatives – and that is a legislative issue; they will need to pass law on it.

But for the most part, the fight over the speakership is the only issue in town.

What is the U.S. missing out on in terms of House business?

If you look at the House calendar for the first few weeks of the year, there isn’t an awful lot on it.

In the first few days, normally you would have the selection of the speaker and swearing in of members. And then they would traditionally break. There wasn’t expected to be a huge amount of legislation being pushed straight out of the gate.

One thing that is being delayed is a revision of the rules of the House of Representatives – something that happens at the beginning of each session of Congress. A rules package decides what the rules of the House will be in that session; then representatives get down to legislative business.

You have to keep in mind that legislative activity is heavier at the end of sessions – and we just finished a session of Congress in December. If legislation doesn’t pass in the House and the Senate in a single two-year session, then it dies – so there is no leftover business from last year; everything starts over again.

As a result, you traditionally don’t see a lot of dramatic legislative activity early in a House session.

But what happens if the impasse continues?

The one pressing thing the House has coming up that is not being dealt with is a vote over the raising of the debt ceiling.

Congress needs to raise the debt ceiling this spring; otherwise the U.S. will default on its obligations.

But the House still has four or five weeks until this really is a pressing issue – and brinkmanship is common when it comes to the debt ceiling, so expect that to be a protracted debate and negotiation in any case.

Can this situation continue?

Yes. The U.S. Constitution identifies only three congressional roles that need to be filled – the speaker of the House is one, the other two being the president of the Senate (the constitution designates that the vice president of the U.S. fills this role), and the Senate president pro tempore, a ceremonial position to serve as the president of the Senate if the vice president can’t fulfill his or her Senate duties.

So there does need to be a speaker in place. The Constitution requires only that the House shall elect a speaker, but doesn’t specify how or lay out a time frame – they can vote for weeks or even months.

By tradition, the speaker is elected by a majority of the House – so right now that would mean 218 representatives, assuming all are present and voting. Although the House rules currently specify that a majority is needed, that can be changed – it isn’t in the Constitution. The GOP could lower the vote majority needed to 213 to push McCarthy over the line, although they wouldn’t go lower as that could allow the Democrats to select Jeffries, who already has the support of all 212 Democrats in the House.

Hang on! If representatives aren’t sworn in, who can change the House rules?

That could come down to the clerk’s office that is currently presiding over the House session. In the same way that the clerk’s office is allowing representatives-elect to nominate speakers, they could allow a motion putting forward a change in the House rules.

It has never happened before, and it would raise a number of procedural questions – but theoretically it is possible.

Who can be a House speaker? We have heard a lot of names

The Constitution has no rules whatsoever about who can and cannot be the House speaker. Representatives-elect can nominate – and even elect – someone who is not a member of the House to be speaker. That is why you have seen Donald Trump be nominated by one member; someone even joked about former speaker Newt Gingrich.

There are requirements for serving as a member of the House of Representatives – you have to be over the age of 25, a U.S. citizen for at least seven years and live in the state from which you were elected. But as a speaker doesn’t have to be a member of the House, these rules don’t apply. So you could, theoretically, nominate a 7-year-old German child.

Could Trump really be the speaker?

Constitutionally, yes. Practically, no. There seems to be very little appetite for this among GOP members in the House – he only received one vote, and may not want the job in any case.

How has this all affected the authority of the role of Speaker?

The short answer is we don’t know yet. The fact that it has taken this many votes and still we don’t have a speaker in place in itself will have an effect. It indicates a divided majority party that will be difficult to lead – that in itself will diminish the power of the role.

Any concessions struck to reach a deal over the speakership could further erode the speaker’s authority. What is being negotiated by holdouts in the GOP are largely measures to empower individual members at the expense of party leadership.

This isn’t that uncommon. Over history the power of the speakership has ebbed and flowed.

‘Uncle’ Joe Cannon – a powerful speaker.
HUM Images/Universal Images Group via Getty Images

One of the most powerful speakers in U.S. history, “Uncle” Joe Cannon, was removed in 1910 by his party for that reason – they thought the speaker had too much power. In 1974, the influx of so-called “Watergate babies” – a group of northern liberal Democrats elected as part of a backlash after Watergate – led to an effort to diminish the power of committee chairs in the House. The rules changes left a vacuum that was filled by the speaker, with the result that the power of the position increased.

That all said, what is being discussed is unheard of. The main concession – a change to the “motion to vacate the chair” rule so that any one member, or a small number of members, can initiate a process that is effectively a vote of no confidence – has never been tried before.

Another request by the GOP holdouts is to open the rules on the house floor so that any member can propose amendments to any bill. There are 435 members, and all have pet projects and constituent needs. Such a change would be chaos. In effect, it would mean that 435 people will be involved in the making of the legislative sausage right on the house floor.

Will any concessions be binding?

They don’t necessarily have to be adopted by future speakers, no. Some will have to be adopted in a new rules package for the House, but the rules package is changed every new session, so they won’t be binding forever. Indeed, some Democratic representatives have indicated that if concessions are made, they would potentially challenge the rules package or vote against some of the most extreme measures that holdouts are demanding.

Some of the concessions being discussed won’t need a rule change at all. They are, in effect, agreements between different factions in the Republican Party. For example, a concession that the GOP leadership will not use its SuperPac to favor candidates in open Republican primaries – that is something that can’t be dictated by House rules; it is more an issue of trust. More