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Stuck With Santos

Investigating and prosecuting the fabulist congressman could take years, by which time voters might have ousted him on their own.
January 13, 2023
Stuck With Santos
WASHINGTON, DC - JANUARY 06: U.S. Rep.-elect George Santos (R-NY) watches proceedings during the fourth day of elections for Speaker of the House at the U.S. Capitol Building on January 06, 2023 in Washington, DC. The House of Representatives is meeting to vote for the next Speaker after House Republican Leader Kevin McCarthy (R-CA) failed to earn more than 218 votes on several ballots; the first time in 100 years that the Speaker was not elected on the first ballot. (Photo by Anna Moneymaker/Getty Images)

The George Santos scandal is so absurd that the late-night hosts are struggling to mock it, the Saturday Night Live team is probably wishing it was back on the air already, and somewhere, a Netflix executive is looking for a screenwriter who can do the story justice. The freshman Republican House member unabashedly admits that he lied to voters and his own party about where he went to school (not Baruch College), where he worked (not Goldman Sachs), his ownership of a number of rental properties (not thirteen), being robbed of his rent money in Queens (not according to NYPD), being Jewish (his “Jew-ish” claim is not a thing), his clean criminal status in Brazil (pelo contrário, say Brazilian authorities), his athletic accomplishments (not a star volleyball player), and the timing of his mother’s death (not on 9/11).

Although party officials in New York’s Nassau County, as well as six newly elected House members from that state, have called for Santos to resign, House Speaker Kevin McCarthy doesn’t plan on helping Santos out the door. “The voters of his district have elected him. He is seated. He is part of the Republican Conference,” McCarthy said yesterday.

Never mind that his election was based on a pack of lies—including allegedly even having someone pretend to be McCarthy’s chief of staff to help with fundraising.

To be fair, McCarthy did add yesterday that “I don’t see any way” that Santos is going to have access to classified information, and that Santos has “got a long way to go to earn trust.” McCarthy’s reticence to be more directly critical of Santos has an obvious explanation: He is worried about the GOP’s slim four-seat House majority, which becomes more tenuous if Santos steps down and New York’s Third Congressional District goes to a special election.

In 2020, Santos lost his first bid for the seat to the incumbent, Tom Suozzi, a Democrat. In 2022, Suozzi opted to run for governor rather than Congress, and lost. Santos ran again to represent the district, which had been redrawn in the intervening two years. Former Congressman Steve Israel—who represented parts of Long Island from 2001 to 2017—called the district “as normal as Santos is extreme,” blaming his untoward victory on “the complacency of the establishment.” A post-Santos special election would unquestionably be different.

Santos, for his part, told reporters on Thursday “if 142 people ask for me to resign, I’ll resign.” He later clarified that he meant 142,000 people, a reference to the number of people who voted for him last November. Still, with the lower figure, Santos inadvertently made a good point: Under Article I, Section 5, Clause 2 of the Constitution, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.” Which means that if 290 of the 435 members of the House agree, Santos can be fired.

But in all of U.S. history, only five members of the House of Representatives have been expelled. Two of those occurred in the last 150 years—and both of those guys had been convicted of crimes. Jim Traficant (D-Ohio) was after a jury found him guilty on ten felony counts, including bribery and racketeering. In 1980, Michael Meyers (D-Penn.) also lost his seat after a bribery conviction.

Santos has not (yet) been convicted of any crimes, and it seems unlikely the Republican-controlled House will want to break with that precedent and expel him. So there is no way to get rid of Santos unless he resigns—at least not until 2024, when he would likely not be re-elected.

Santos’s most dangerous lies involved his campaign finances. The Campaign Legal Center, a Washington-based watchdog group, filed a complaint against him this week with the Federal Election Commission (FEC), alleging three categories of violations of the federal campaign and election laws: (1) knowingly and willfully acting as a straw donor for unknown persons to make illegal contributions to his own campaign, (2) falsifying reports to the FEC throughout the 2022 election cycle, and (3) illegally using campaign funds to pay for rent and personal expenses. The complaint is rife with colorful details, including that “Santos’s campaign committee reported an implausible number of disbursements for an amount between $199 and $200”—such as $199.99 worth of “Office Supplies” at each of Best Buy, Staples, Walgreens, and Target, and a $199 hotel room that costs over three time as much. Moreover, although FEC regulations ban the use of campaign funds to pay for a candidate’s personal residence, $10,900 was apparently spent for “18 Juniper Place,” which “one neighbor said Mr. Santos himself had been living [at] for months, and two others said that they had seen Mr. Santos and his husband coming and going.”

But the biggest liability for Santos is his awkward payment of $705,000 in loans to his own campaign in 2022. Although self-financing of campaigns is legal, “in May 2020, Santos disclosed having no assets and receiving ‘earned income’ of only $55,000 as ‘salary, commission, and bonus’ from his employer at the time, LinkBridge Investors.” By contrast, for each of the following two years, he allegedly earned between $1 and $5 million in dividends and $750,000 in salary, all from a company called Devolder LLC, “in which Santos claims ‘100% interest.’” (Devolder is his maternal family name.) The complaint charges that “the rapid shift in Santos’s finances were not a mere coincidence, but a direct result of unknown persons directly, and illegally, giving him money to run for federal office.” Federal law prohibits any person from donating more than $2,900 to any one candidate or campaign, and bans corporations or foreign nationals from contributing anything at all. It also makes it illegal for candidates to receive money from such sources, and forbids the making of contributions on behalf of another, anonymous, source.

On Thursday, the New York Times reported that Santos’s campaign might have solicited money from at least one donor for contribution to a so-called Super PAC called “RedStone Strategies,” which listed Santos’s Devolder firm as one of its managing officers. Not only does the donor reportedly have no idea where the $25,000 donation went, but the FEC has no record that RedStone Strategies exists—let alone documentation of its donors, contributions, or spending. Super PACs can solicit and spend unlimited sums of money so long as they do not contribute directly to a candidate or political party. If their contributions exceed $1,000 per year, they must register with the FEC.

The Santos campaign reportedly solicited six-figure contributions on behalf of yet another group—this one called “Redstone Action.” That entity was described in a campaign email to a donor as “a 502(c)(4) political organization formed specifically to influence the election in NY-03.” Technically, a 502(c)(4) is an IRS designation for social welfare groups, such as a local volunteer fire department. So long as these organizations—which pay no federal taxes—devote less than 50 percent of their time and resources to politics, they can spend money to influence elections with legal impunity. According to the Brennan Center for Justice, such “dark money” spending topped $1 billion since 2008. The Santos-friendly entity pledged in the donor email to dedicate “all its resources” to electing Santos.

For Santos, the threat of FEC action on the CLC’s complaint carries only monetary fines, which his magical funding source could presumably cover. But the Department of Justice has authority to prosecute violations of the federal election statutes criminally, as well, if the offenses were committed “knowingly and willfully” and involve certain monetary thresholds. Too bad that for Kevin McCarthy and his cast of January 6th enablers who remain in Congress, the commission of crimes is not an impediment to carrying out the duties of federal public office, including House members who vowed under the Constitution’s express terms to “be bound by Oath or Affirmation, to support this Constitution.”

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.