Congress Has the Constitutional Right and Obligation to Boot Out Crooks and Conmen
Sen. Menendez and Congressman Santos can no longer effectively represent their constituents and need to be expelled pronto
Dear Readers:
Liberal democracies are suffering from the Chinese curse: They are living in interesting times. Rightwing, populist authoritarianism is gathering force around the world and attempting to take them down. This challenger ideology consists of many strains, but all share the same feature: They mask their intellectual shallowness with a cynical nihilism that is better at critiquing the existing liberal order than proposing a viable alternative.
The U.S. will hold yet another momentous election next year. Donald Trump remains wildly popular on the right despite his manifest corruption and his efforts to overturn American democracy. Even if he loses, the raw populism that he has fueled is not going away anytime soon.
The UnPopulist was founded to confront these forces of rightwing populism in the U.S. and abroad and it has its work cut out for it. In this struggle, I’m super excited to report that it has gained a powerful new ally: Berny Belvedere, founder and editor of Arc Digital, an excellent Substack. He has stepped down from that role to join forces with The UnPopulist as senior editor.
Berny, who lives in Miami and has been teaching philosophy and ethics at Florida International University and Miami Dade College, started Arc Digital in 2016 thinking that he would be countering progressive excesses that Hillary Clinton was surely going to unleash from the White House. But the mission changed when Trump squeaked out his victory and started flattening America’s bedrock liberal principles and institutions through his words and deeds while his party, the alleged bastion of constitutional governance, simply went along. “It became clear to me that the political threat had shifted dramatically and there was no more important task than to dispossess the right of the Trumpist plague and return it to sanity,” notes Berny.
Berny, who immigrated to the United States from Buenos Aires at the age of five, is a practicing Presbyterian, a principled classical liberal, a prolific writer, and an excellent editor who delivers biting put downs of nutjobs and fools on social media. (One of my favorite Berny pieces is this delicious dissection at The Bulwark, “Decoding DeSantis’s Weird War on Disney,” in which he argues how the GOP’s internal electoral incentives are driving it into the arms of MAGA extremists.)
But Berny is not the only new addition to the The UnPopulist family this week. We are also very happy to announce that, starting today, Andy Craig, director of election policy at the Rainey Center and adjunct scholar at the Cato Institute, will write a bimonthly column for us, focusing on American politics, electoral reforms and much else. Craig, a brilliant young mind, is no stranger to readers of The UnPopulist. He has been a guest contributor almost since our inception and his piece, “Yes, It Was an Attempted Coup,” is among our top five most-read pieces.
His kickoff column today offers a historically and constitutionally grounded case for why Congress should boot out crooks such as Sen. Robert Menendez and Congressman George Santos from its midst to protect both its own integrity and the interests of the constituents that this duo of bipartisan corruption was elected to represent.
Read on.
And you can help grow The UnPopulist family too by circulating our pieces and encouraging your friends and family to subscribe. It is, after all, the best free deal in an unfree world!
Shikha Dalmia
Editor-in-Chief
The federal indictment of Sen. Robert Menendez is lurid in its details. In a convoluted series of schemes, according to the U.S. Department of Justice, the New Jersey Democrat accumulated nearly half a million dollars in cash, a Mercedes-Benz convertible, a no-show job for his wife, and literal gold bricks. In exchange for the alleged bribes, he abused his office to interfere with a New Jersey state investigation into possible business wrongdoing and to support an Egyptian businessman’s costly monopoly on certifying U.S. halal meat exports to Egypt.
Allegedly.
Menendez hasn’t been convicted in a courtroom, and obviously, he is entitled to due process and the presumption of innocence in the criminal case against him. Still, the hard evidence that he is unfit to continue in office is overwhelming. Menendez should be an ex-senator as soon as possible, even if the Senate must expel him—and disgraced Republican congressman George Santos should meet a similar fate in the House.
Missing the Mark With a Con Man
It’s not the New Jersey senator’s first brush with the law. In 2017, a prosecution for his receipt of lavish gifts from a Florida ophthalmologist (himself convicted of Medicare fraud) ended in a mistrial. The evidence for any explicit quid pro quo was thin and circumstantial, and Menendez insisted the wealthy doctor was simply a longtime friend with a generous sense of hospitality. After prosecutors decided not to retry the case, Menendez was re-elected to a third term and later became chair of the powerful Senate Foreign Relations Committee.
In the wake of the indictment, Senate Majority Leader Chuck Schumer announced Menendez would “temporarily” step down as Foreign Relations chair. Still, Schumer insisted Menendez “has a right to due process and a fair trial.” He also praised his fellow Democrat’s record as “a dedicated public servant” who is “always fighting hard for the people of New Jersey.” The statement was widely panned as tone-deaf.
Other Democrats did a better job reading the room. Unlike the prior indictment, this one’s evidence is overwhelming, including ample documentation from the senator’s own emails and text messages. He has been caught red-handed, dead to rights, with striking photographic proof now plastered across the internet. New Jersey’s governor, several of its House members, and its junior senator, Cory Booker, have all called for Menendez to resign, as have a raft of other Senate Democrats.
Writing in The Washington Post, conservative columnist Henry Olsen sounded a bit more like Schumer. “Menendez is right to ignore” those calling for his resignation, he writes. Instead, “the presumption of innocence” requires that we should “let the justice system play out as it’s supposed to.”
This sounds like a reasonable argument, and it’s the one most commonly invoked to explain how reluctantly and rarely Congress moves to expel a member. Due process and the presumption of innocence are important, fundamental principles. We’re right to tread carefully when they may be at stake. Respecting election outcomes is also no small thing, as we have recently seen.
However, Olsen and Schumer are both missing the mark on how expulsion—and its close cousin, political pressure to resign—is supposed to work.
The Senate’s Duty as an Institution
If Menendez doesn’t resign, as he insists he won’t, the Senate should move promptly to expel him. The framers of the Constitution gave them that power for exactly this sort of case.
True, the government’s allegations must still be proven beyond a reasonable doubt in a court of law with a jury of his peers, no matter how obviously guilty he is. That’s all well and good. But it has nothing to do with his fitness to continue to hold office. For that purpose, the public evidence has already proven him unfit.
The Constitution provides, “Each House may … punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This is in line with other powers each chamber is given to manage its own affairs, including to “judge the Elections, Returns and Qualifications of its own Members,” “determine the Rules of its Proceedings” and to “compel the Attendance of absent Members.”
The whole point is that each body must be able to act to protect its own institutional integrity. The Senate, by constitutional design, is not dependent on the actions of the executive and judicial branches to fix the Senate’s problems. Senators have both the right and the obligation to judge the evidence for themselves. Expulsion is properly a political decision for the legislature—the branch of government most directly accountable to the people.
A senator with a demonstrable penchant for bribery bordering on kleptomania has lost all credibility to be a member of the world’s most powerful legislative body. It’s obvious that Menendez can no longer effectively represent his constituents, and that he is not doing so with their interests in mind. Every vote he casts is now a disgrace to the Senate as a body.
Granted, expulsion has been used sparingly, but it has never been tied to criminal conviction. The first expelled U.S. senator, William Blount of Tennessee in 1797, was exposed in a conspiracy to seize what was then Spanish territory in Louisiana and Florida with the assistance of the British. In other words, he was plotting with foreign powers to wage his own private war. The House impeached him, but the Senate later decided the impeachment process didn’t apply to senators and representatives. Instead, Blount was expelled. But he was never prosecuted, and he remained popular in his home state, where he later became speaker of the state senate.
Fourteen other senators were expelled in 1861 and 1862 during the Civil War after abandoning their posts to support the Confederacy. Like Blount, and like almost all other Confederates, they never faced criminal accountability for their actions. But the Senate hardly abused its discretion in expelling members who were literally waging war against the United States.
Since the Civil War, no senator has been expelled. Even so, the imminent likelihood of expulsion has pushed several scandal-plagued members to resign. These cases have tended to involve corruption or other personal misconduct, more akin to Menendez. Some later resulted in criminal conviction; others did not.
More broadly, the House or Senate might use expulsion in cases where there is no alleged wrongdoing, but rather a severe incapacity that leaves a member both unable to function and unable to resign. Over the years, the deterioration of more than a few senators, including the late Sen. Dianne Feinstein, has made a compelling case for the possibility of this sort of nonpunitive expulsion. In a more extreme case, a lawmaker might be in a coma, with no other procedure available to vacate the seat. In that scenario, an expulsion without any allegation of wrongdoing would not be improper.
No Rest for the Wicked—on Either Side of Aisle
Unfortunately, Menendez has a perverse incentive to cling to office. In plea negotiations over public corruption cases, prosecutors have long accepted a resignation in lieu of prosecution or in exchange for a lighter sentence. Most famously, Spiro Agnew avoided jail time on bribery charges by agreeing to resign as vice president in 1973 and pleading no contest to one count of felony tax evasion. So long as Menendez holds onto his seat, he has a valuable bargaining chip to potentially reduce his sentence in a plea deal. The Senate shouldn’t allow itself to be used for this kind of leverage.
The same dynamic is playing out among Republicans on the other side of the Capitol. Rep. George Santos of New York has become a national laughingstock and a criminal defendant for his bizarre con-man antics and litany of lies about his personal background. Former House Speaker Kevin McCarthy, with his razor-thin Republican majority, resisted calls for Santos’ expulsion. Instead, he referred the matter to the House Ethics Committee, which has yet to produce a report.
Senate Democrats don’t even have the political excuse of protecting their narrow majority. New Jersey’s Democratic governor, Phil Murphy, could immediately appoint a replacement senator. There would be no change in the partisan makeup of the upper house.
But the issue is fundamentally the same in both cases: Being a member of Congress is not a right anybody is entitled to. Removing corrupt, manifestly unfit politicians from Congress is first and foremost about whether their continued tenure harms the public interest and undermines the Constitution. While there might be some borderline cases, such as scandals unrelated to a member’s official duties, straightforward bribery and financial fraud are obviously, undeniably proper grounds for expulsion.
The only due process malfeasant members of Congress are owed is a vote where two-thirds of the chamber is required to give them the boot. Anything else, such as a prolonged committee investigation, is purely at the discretion of the House or Senate. Nor is either institution bound to a standard of proof beyond a reasonable doubt. But in most past cases, as in these two, there is no reasonable doubt about the facts.
The only real question, then, is if the wrongdoing is serious enough to merit being expelled from office. Expulsion shouldn’t be taken lightly or abused for partisan purposes. It involves, after all, overturning the results of the previous election. Thus, it’s properly placed behind the safeguard of requiring a supermajority, which means in effect requiring bipartisan agreement.
Expulsion should not be used merely for distasteful political rhetoric or outrageous positions. The people of New Jersey and New York have the right to elect somebody who represents their views. Members of Congress often say wildly reprehensible things and cast votes or introduce bills that do great harm. But their accountability for these political acts is to face the people at the ballot box.
What’s not reasonable is thinking there’s any right (or expectation) on the part of the voters to elect lawmakers who use their office to commit egregious crimes like monetizing their power to line their own pockets. Expulsion, far from failing to respect the wishes of the voters, is the proper remedy for when the electorate has effectively been defrauded. And practically speaking, given the widespread publicizing of Menendez’s and Santos’ malfeasance, neither man has a chance of re-election anyway. One poll of New Jersey voters since the indictment found Menendez with a rock-bottom approval rating of 8 percent.
The Public Good of Expelling Bad Public Officials
It’s easy to be cynical about corruption in Washington. There’s influence peddling, shady campaign contributions, special-interest rent-seeking, and a revolving door of officeholders turned lobbyists. These problems are real and breed mistrust. But we should keep this in perspective. As sleazy as political horse-trading can be, it’s something else entirely for members of Congress to eagerly solicit direct, personal, old-fashioned bribes.
Outright bribery is actually relatively uncommon, socially unacceptable, and harshly punished in the United States compared to much of the world. As one travel guide warns foreign visitors, trying to bribe an American police offer when you get pulled over will probably not go well. It can be difficult for Americans to imagine how endemic everyday cash bribery is in places like Russia and much of the developing world, where every interaction with even petty officials involves an extorted “gift.”
That sort of culture of corruption is toxic. It has massive negative consequences for economic outcomes, quality of life, political stability and levels of social trust. So ironically, it’s a good sign that in the United States, we regularly prosecute corrupt governors, senators, mayors, congressmen and now even an ex-president. Genuine progress has been made in the past on busting up graft, the political influence of organized crime, and corrupt political machines in state and municipal offices. The alternative of not prosecuting corruption would be much worse.
But criminal law enforcement is just one element of America’s anti-corruption mechanisms. Timely removals from office are also essential. We shouldn’t be afraid to follow the Constitution and promptly expel unfit members of Congress like Santos and Menendez.
© The UnPopulist 2023
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Thank you, Shikha, for the introductory note! Beyond stoked to be here.
Andy, fantastic piece!
Since this was published all of 8 days ago, both Santos and Menendez have been hit with superseding indictments adding on various other damning details and additional charges.