What about Bob? Santos’ expulsion sets new precedent, but Sen Menendez is hanging on

What about Bob?

As in Sen. Bob. Menendez, D-N.J.? That is, indicted Sen. Bob. Menendez, D-N.J.

The senator faces charges of being a foreign agent for Egypt.

“How can you eject (former Rep. George) Santos, R-N.Y., and not really have any kind of actions for a real sleazeball like Menendez?” asked Sen. John Fetterman, D-Pa.

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The Pennsylvania Democrat noted that a federal court just cleared Menendez on corruption charges a few years ago.

“This is the second dance to the prom,” said Fetterman. “He must believe he was empowered or can get away (with) it.” 

Fetterman is new to the Senate, so he is still learning the upper chamber’s folkways.

“You have to be trying really hard to get expelled in the Senate,” opined Fetterman.

For decades, there was an unofficial standard for what it took for the House and Senate to expel a lawmaker. One had to either be a convict or a Confederate. Both the House and Senate ousted a slate of Confederates in the 1860s. Then, the House expelled former Rep. Ozzie Myers, D-Penn., in 1980 and late Rep. Jim Traficant, D-Ohio, in 2002. Both were found guilty in federal court.

The one anomaly for expulsion was late Tennessee Sen. William Blount in 1797. The Senate booted Blount over treason for trying to help the British.

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However, everyone else was a Confederate or a convict.

That was until George Santos.

Santos was charged with defrauding his own campaign and faces a litany of federal charges. A House Ethics Committee report found that the former congressman bilked donors out of money and used the cash to buy luxury items at Hermes and receive Botox treatments.

Santos faces trial in February. Menendez goes on trial in May.

Both Santos and Menendez hold a parallel legal status. However, one remains in office, and one is gone.

But is there a new precedent on Capitol Hill after the expulsion of Santos?

House Democrats were ready to pounce had Republicans failed to expel Santos last week. A failure to expel Santos from the House would have been a gift to Democrats. The party could point to the refusal of Republicans to expel Santos as an example of what was wrong with the House majority heading into 2024. That is on top of general chaos which saturated the House all year long. A five-day speaker election in January. The removal of the speaker in October. A three-week struggle to tap a new speaker — incinerating three candidates along the way. A dance with the debt ceiling. Two flirtations with government shutdowns. And then there were various scuffles over failed spending bills and other initiatives.

However, the expulsion of Santos could present an opportunity for Senate Republicans to hammer Democrats about Menendez. Republicans could use such an approach to target vulnerable lawmakers facing tough re-elections this year in red or purple states. Think Sens. Bob Casey, D-Pa., Tammy Baldwin, D-Wis., Sherrod Brown, D-Ohio, and Jon Tester, D-Mont.

The double standard between Santos and Menendez seems obvious. But so far, Republicans are not seizing the opportunity.

“This is an internal problem with the majority,” replied Senate Minority Leader Mitch McConnell, R-Ky., when asked about Menendez. “He obviously has some external problems. I’ll leave it up to the majority leader to decide how to deal with it.”

McConnell also noted that he was “glad” Menendez is “not a Republican.”

Yours truly asked Senate Majority Leader Chuck Schumer, D-N.Y., if the Ethics Committee should probe Menendez the same way the House Ethics panel investigated Santos and if senators should kick him out.

Schumer dodged.

“The Senate has standards as to proper behavior and Sen. Menendez’s behavior has fallen way below that,” replied Schumer, before moving on to another question.

CNN’s Manu Raju asked Schumer if it was “appropriate” for Menendez to attend a classified briefing on Ukraine, considering that he is charged with operating on behalf of the Egyptians. At the time, Ukrainian leader Volodymyr Zelenskyy was scheduled to speak to senators at the briefing via a secure video conference line.

“He has a right to do it as a senator,” replied Schumer of Menendez. “You’ll have to ask him.”

Like in the House, it also takes two-thirds to expel a senator. It is unclear if the Senate could ever reach that bar with Menendez. The Senate has not expelled anyone since 1862 — although it did flirt with potential expulsion for the late Sen. Harrison Williams, D-N.J., in the 1980s. The same with former Sen. Bob Packwood, R-Ore., in the 1990s.

It is about the “math” if the Senate were to expel Menendez. However, Rep. Byron Donalds, R-Fla., has a theory about Democratic inaction regarding the New Jersey Democrat.

“Democrats don’t do this to their guys. They protect their members,” charged Donalds. “Number two, they’ve got a slim majority in the Senate. And Chuck Schumer is not going to give that up over an indictment. That’s why the there’s no resolution in the Senate. Let’s just call it what it is.”

The Senate breakdown is currently 51 senators who caucus with the Democrats and 49 Republicans. So even if the Senate expelled Menendez, Democrats would cling to a 50-49 majority, and New Jersey Gov. Phil Murphy, a Democrat, would still appoint a Democrat to the Senate.

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Possibly his wife? Tammy Murphy is running for Menendez’s seat in the Democratic primary.

The Senate would be 50-50 if Democrats somehow lost the New Jersey seat. However, based on the operating agreements of “tied Senates” in 2001-2002, and 2021-2002, Democrats would likely maintain control because of the vote of Vice President Kamala Harris — serving as president of the Senate.

Schumer was not the only Democrat unwilling to weigh in on whether Menendez should face the same discipline as Santos.

“I’m not a senator. I don’t know any of the rules,” said Rep. Josh Gottheimer, D-N.J., when asked.

However, the “rules” are the same for the House and Senate. Article I, Section 5 of the Constitution declares that both bodies can expel a member, unconditionally. The Constitution is silent on motive or rationale.

It comes down to an issue of political will.

After much consternation, the House elected to establish a new precedent and expel Santos. The House voted to block two previous efforts to expel Santos, but the ground shifted after the House Ethics Committee produced a scathing report on Santos.

The Senate Ethics Committee has not even entertained the possibility of an inquiry into Menendez. Ironically, the Senate pondered expelling Bob Packwood back in the 1990s over sexual harassment — even though he never faced criminal charges.

Ironically, the top Republican on the Ethics Committee back then was Mitch McConnell. At that time, McConnell said that Packwood had a “habitual pattern of aggressive, blatantly sexual advances.” The Ethics Committee recommended expulsion for Packwood. However, Packwood finally resigned.

It is doubtful the votes are there to expel Menendez.

However, in this instance, it is not just about the math.

It is really about the political will.