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It’s depressingly common for members of Congress to serve while facing criminal charges

Senate Lawmakers Speak To Press After Weekly Policy Luncheons
More than two years ago, Sen. Bob Menendez (D-NJ) was indicted on federal corruption charges. I saw him at two press conferences on Capitol Hill this week. He’s still a Senator.
Photo by Chip Somodevilla/Getty Images

House Speaker Paul Ryan didn’t mince words. If Republican candidate Greg Gianforte wins his special election in Montana on Thursday, Gianforte will take his seat in the House of Representatives — even as he faces criminal charges for allegedly assaulting a reporter.

“Physical altercations — there’s never a call for physical altercation. There’s no time a physical altercation should occur with the press. So that should not have happened,” Ryan said.

On Wednesday night, the day before his election against Democrat Rob Quist, Guardian reporter Ben Jacobs accused Gianforte of body-slamming him at a volunteer barbecue. Audio and eyewitness accounts quickly emerged to support Jacobs’s story. Gianforte was charged with a misdemeanor late Wednesday night.

But Ryan said he wouldn’t take any action to force Gianforte out of the House. “The people of Montana are going to decide today who they want to send to Congress. If he wins, he’s been chosen by the people of Montana. ... I’m going to let the people of Montana decide who they want as their representative.”

House Republicans seemed to think Ryan was doing the right thing. “We’ll take it a step at a time and see what the voters say first,” said Rep. Mac Thornberry (R-TX). “It’s always a mistake to answer a hypothetical question. We’ll see what the voters say first and then decide.”

Even some Democrats agreed with Ryan’s statement. “Voters are going to make the decision,” said Rep. Peter Welch (D-VT) in an interview. “I think you have to respect the decision of the voters and the election process of the district. If he’s convicted — well, I haven’t thought that far ahead.”

What normally happens when members of Congress are charged with crimes

Democrats may be up in arms over the idea that Gianforte can serve in the nation’s lower chamber amid criminal charges. But it would actually be a break from precedent if the criminal charge blocked his path to the House.

For instance, Sen. Bob Menendez (D-NJ) was indicted more than two years ago on multiple felony corruption charges. Prosecutors said he took more than $1 million in donations in order to help a Florida ophthalmologist get visas for three of the ophthalmologist’s girlfriends.

The New York Times’s editorial board called for Menendez to step down. Conservatives were outraged. Democrats were slow to defend the embattled senator.

But Menendez decided that he instead wanted to remain a senator. And so, as the case continues to wind its way through the courts, he has. He’s still a regular appearance on the Senate floor, at press conferences, and all around Capitol Hill.

Plenty of other examples abound. Rep. Chaka Fattah (D-PA) was indicted on federal racketeering charges in July 2015 and continued to serve for more than a year. Sen. Ted Stevens (R-AK) was indicted in July 2008 on seven counts of failing to properly report gifts, and served for more than five additional months. (The Washington Post has a thorough rundown from 2015 here.)

One problem for House and Senate leadership is that removing a sitting member is a difficult process that requires removal proceedings. It’s very rarely used.

“There’s no formal process to remove a member. You can be charged and convicted of a crime, and even if you’re in prison you can still serve,” said Josh Huder, a congressional scholar at Georgetown’s Government Affairs Institute, adding that dozens of members have clung to their seats while facing criminal charges.

What Paul Ryan might do

But even as Ryan promises to uphold Montana’s wishes and seat Gianforte, there are other ways Republican House membership could respond to the high-profile assault.

“If [Gianforte] is elected, they’re going to want to hide him. So [the assault] probably harms the chances of him getting a really good committee assignment,” said Michele Swers, a congressional expert at American University. “He almost certainly won’t get as prominent a committee assignment as he would have otherwise.”

A felony conviction normally does trigger a resignation — as when Rep. Fattah was found guilty in federal court in June 2016 on racketeering and fraud charges.

Even then, rather than go through with impeachment, the parties’ leaders exert pressure from behind the scenes to force a resignation. This is what reportedly happened with Rep. Michael Grimm (R-NY), who threatened a reporter on camera while facing tax evasion charges. Then-Speaker John Boehner privately asked him to resign.

“You can prevent him from being part of the caucus; they can ostracize him. But there’s no formal mechanism to remove him from office outside of impeachment,” Huder said.

Correction: A previous version of this story incorrectly stated that Sen. Menendez was forced to relinquish his post on the foreign relations committee because of federal charges.

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