Recent events cause the citizen to ask whether there are any rules that might prevent members of the criminal class from also being members of a Congressional class. What we have learned, thanks to Michael Grimm, the Congressman from New York’s 11th Congressional District, is that being a congressman and a convicted felon are not mutually exclusive. Being both ultimately ended badly for Mr. Grimm but not because of any congressional rule or protocol.
In April 2014, Congressman Grimm was confronted with a 20-count federal indictment alleging, among other things, that he was concealing income he received from a health food restaurant he once owned. Among other things, the store was a vehicle that enabled him to engage in tax fraud. On May 28, 2014, discussing the criminal charges with a reporter from Politico, Congressman Grimm expressed confidence he would be exonerated. On November 4 Congressman Grimm was elected to a third term in Congress and on December 23 Congressman Grimm pled guilty to a felony federal charge of filing false tax returns for the health food store he owned. Prosecuting attorney, Loretta Lynch, the U.S. Attorney for the Eastern District of New York said the Congressman “chose lies and deception over honest dealings with federal and state authorities as well as his own employees.” Notwithstanding his guilty plea, the good news, as far as the congressman was concerned, was that instead of standing trial in the spring on 20 federal charges he would be in Congress working on important legislation. As he told reporters after he’d entered his guilty plea: “So long as I am able to serve, I will serve.” What he was saying is that being a convicted felon is no bar to serving in the United States House of Representatives. That probably surprises some of my readers. Mr. Grimm is, however, correct.
Paragraph 1 of House Rule XXIII says members of the House “shall behave at all times in a manner that shall reflect creditably on the House.” That reference, of course, does not apply to criminal behavior engaged in by a member of the House before joining that body, and, therefore, pleading guilty to such a crime while a member of Congress should not implicate paragraph 1. It might, however, implicate paragraph 10. That paragraph says a congressman receiving a sentence of 2 or more years’ imprisonment “should [not “must”] refrain from voting on any question . . . unless or until judicial or executive proceedings result in reinstatement of the presumption of the [member’s] innocence . . . . or the Member is reelected to the House after the date of such conviction.” Why the Rule refers to “reinstatement of the presumption of innocence” instead of “exoneration of the charges”, is unclear. Although Rule XXIII does not require a convicted congressman to leave the House, two-thirds of the House could vote to expel Mr. Grimm but that has only happened twice since the civil war.
On December 29,2014, Congressman Grimm announced that he was resigning from Congress saying: “After much thought and prayer, I have made the very difficult decision to step down from Congress. . . .[It] is time for me to start the next chapter of my life.” His reference to “ prayer” almost certainly refers not to Mr. Grimm addressing a deity, but to Majority Leader, John Boehner, addressing Mr. Grimm and urging him to resign from Congress so that Mr. Boehner’s Republican caucus would not include a convicted felon. The “new chapter” to which Mr. Grimm refers is his upcoming time in prison.
The foregoing discussion is of more than passing interest to one of Mr. Grimm’s colleagues, Chaka Fattah. Mr. Fattah, a democrat, has just been elected to an 11th term in the House from West Philadelphia with 88 percent of the vote. He, like Mr. Grimm, is facing an encounter with the federal criminal justice system. The foregoing discussion may be of more than passing interest to him should he be convicted of criminal activity as seems more than a slight possibility. Federal prosecutors have had him in their sights for some time.
In August 2014 his former chief of staff pled guilty to several counts of campaign finance fraud. Among improper payments made by the aide were payments to reduce Mr. Fattah’s son’s college debt. On November 7, 2014, another former Fattah aide pled guilty to one count of conspiring to commit honest services wire fraud, a charge someone smarter than this writer can explain. The kinds of questionable activities in which Mr. Fattah and his aides have been engaged are discussed at some length in The Philadelphia Tribune. The foregoing discussion of what consequences of a conviction meant for Mr. Grimm are certainly of no interest to Mr. Fattah-yet. He might want to keep it in mind for future reference, however.
Christopher Brauchli is an attorney in Boulder, Colorado.