Congress Has No Idea if George Santos Can Legally Serve in Congress

Of the many questions surrounding serial fabulist George Santos as he joins the new Congress, one of the most basic is also one of the hardest to answer conclusively: Has he been a U.S. citizen for seven years, one of the three requirements for the job specifically listed in the Constitution?

No one in a position of authority, it appears, has asked this question. Nor is anyone exactly responsible for doing so.

The office of the Clerk of the House of Representatives tells VICE News it’s not their job to check, New York State’s election board says it wasn’t their job and isn’t their problem now, and neither House Republicans or Democrats have anything to say on the matter. The question would perhaps go to the House Ethics Committee, but it points to the House Administration Committee, which for its part points back to the Clerk of the House of Representatives. Experts said that no one is missing anything and that in fact no one is really in charge.

All of this raises the absurd yet fascinating possibility that someone plainly ineligible under the Constitution, such as the 16-year-old king of a foreign nation, could win election and be seated as a member of Congress with no one doing anything about it.

That the question of who is supposed to make sure members of Congress are legally able to serve in Congress comes up at all is due to the sheer scale of the lying and dissembling Santos—who at one point found himself defending his false claim that he was Jewish by asserting that he’d in fact said that he was “Jew-ish”—has, he confesses, done about his own past.

Last fall, Santos, 34, won an upset victory as a Republican in New York’s third congressional district, running as a living Horatio Alger story. The proudly gay son of immigrant parents, raised in a working-class Queens community, he’d become a real-estate mogul, philanthropist, and enthusiastic Donald Trump supporter after attending Baruch College and New York University and climbing his way up the ladder at Wall Street’s most powerful firms—or so he said.

Last month, the New York Times revealed that Santos’ biography was nearly entirely fabricated. He hadn’t attended Baruch or NYU, hadn’t worked for Goldman Sachs or Citigroup, and didn’t run a tax-exempt charity. Further reporting showed that his grandparents weren’t Holocaust survivors and that his mother wasn’t in the South Tower of the World Trade Center during the 9/11 attack. She wasn’t a New York finance executive, either, and in fact doesn’t seem to have raised him in Queens. She lived and died in Brazil, where he had, at age 19, been charged with fraud after allegedly using checks stolen from a man she was nursing—a crime to which he confessed but now denies he committed. 

Santos now faces several investigations headed by people ranging from his local district attorney to Brazilian authorities who want to prosecute him on fraud charges, even as congressional leaders express confidence that the House itself will look into him and federal prosecutors reportedly scrutinize his campaign-finance arrangements.

One lacuna in all this involves whether Santos fulfills the Constitution’s citizenship requirement. 

Santos says that he was born in Queens, and a decade-old Brazilian court document describes him as a U.S. national. Ordinarily, this would be enough to answer any questions.

Given the context, though, and the impossibility of believing anything Santos says, it’s understandable that even the most minor inconsistency would draw scrutiny. And a number of actors ranging from Democratic partisans to racist anti-immigration organizations have in fact scrutinized minor inconsistencies. A report from Patch, for example, has drawn attention for quoting a former coworker as saying that Santos had said he was born in Brazil, and as Talking Points Memo noted, one version of a statement issued by Santos’ lawyer referred to him as an immigrant. (“George Santos,” it read, “represents the kind of progress that the Left is so threatened by—a gay, Latino, immigrant and Republican.”) 

Santos, who didn’t respond to emails from VICE News and has also not responded to inquiries from other news organizations, hasn’t offered any clarity here. Neither the Republican and Democratic caucuses or national committees responded to inquiries.

In the meantime, there appears to be no official body that can confirm that Santos is indeed qualified for office, or that has looked into the matter.

The clerk of the House of Representatives would seem to have responsibility for ensuring that members of Congress meet the requirements of office. (By statute, the clerk is responsible for making a roll of representatives-elect, consisting of “such persons only, whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States.” The Precedents of the House go into detail about the clerk’s role in making sure members are properly certified.) A staffer in the clerk’s office, though, who did not give a name, initially told VICE News that they believed this was the business of the House’s ethics or administration committees. 

Staffers for those committees declined to speak on the record. An ethics staffer pointed VICE News to the administration committee’s website, which plainly puts questions of “credentials and qualifications” under its purview; an administration staffer, for their part, pointed VICE News to the statute that would appear to make this the business of the clerk. 

A staffer for the clerk, though, who would only identify himself as George—he declined to give a last name because he “doesn’t have to do that anymore”—disclaimed any such responsibility, saying the office’s role is only to rubber-stamp certification provided by the states.

“We as the office of the clerk don’t certify him until the state sends certification,” George said. “The state is responsible for the certification of elected members. We don’t look up anyone’s information. The state certifies him.” This process, he said, is already complete.

In response to questions from VICE News, John Conklin, a spokesperson for the New York State Board of Elections, said that the certifications it provides have nothing to do with whether candidates are qualified for office under the Constitution.

“In New York, as ministerial agencies, boards of elections are tasking with reviewing the sufficiency of ballot access documents, not the qualifications of candidates,” Conklin told VICE News. “If there is a question as to the candidate meeting the qualifications of office, an objector may bring a timely action in court challenging the candidate’s qualifications and evidence can be presented in open court. If the court rules that the candidate does not meet the qualifications they will be denied access to the ballot.”

No one appears to have brought a timely action in court, but in any event ballot access isn’t the issue, since Santos has already accessed it, with great success. In response to further questions, Conklin said that the House could choose not to seat an unqualified candidate, or that the U.S. Attorney General could bring a quo warranto proceeding. 

The Department of Justice did not reply to a request for comment.

Casey Burgat, director of the legislative affairs program at George Washington University’s graduate school of political management, expressed bewilderment and amazement when all of this was laid out to him, but said that he wasn’t aware of any real enforcement mechanism for constitutional-eligibility requirements other than an open court challenge, something which seemingly wouldn’t be possible after a member is seated, or, possibly, a secretary of state declining to certify a representative-elect, or withdrawing their certification. (In New York, the secretary of state plays no role in certification, said a spokesperson, who directed questions to the Board of Elections and the Republican and Democratic parties.) In other words, if a 16-year-old were somehow elected and seated, no one could do anything about it except Congress—or, possibly, the Department of Justice.

All of this is most likely academic, and not just because the most solid and authoritative evidence there is, the Brazilian court document, strongly suggests that Santos is qualified—at least as a matter of law—to hold a seat in the House. 

Arcane matters of procedure are of far less moment than the variety of criminal investigations already ongoing, and the ultimate question is whether, in a narrowly-divided House, Republicans will investigate someone who serves as a number for them and act upon their findings. Still, just as the failures of both major parties and the press to verify the most basic facts about Santos led to this situation, it appears that the failure of authorities to put in place any mechanism for enforcing constitutional requirements makes possible any number of absurd scenarios.

“You could have a constitutionally illegitimate sitting member of Congress,” asked Burgat, thinking through the implications, “and nobody could do anything about it except Congress?”