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