As the Robert Menendez trial winds down, the New Jersey congressional caucus faces an odd scenario if the Senator is convicted of political corruption charges. Should Menendez remain in office if he is found guilty and he then appeals the case?
For now, the Menendez defense team is arguing their client is not guilty for various reasons, including a recent Supreme Court decision that redefined how corruption cases involving elected officials are explained in court. In 2016, the Court overturned former Virginia Governor Robert McDonnell’s conviction when it said prosecutors too broadly defined corruption charges to include official acts such as setting up meetings.
But in scenario where Menendez is convicted, his team would definitely appeal and likely cite the McDonnell case. And that sets up several unusual scenarios since New Jersey is about to change governors.
The ratification of the 17th Amendment in 1913 changed how vacancies are filled in the Senate. It allows a state legislature to determine if a Governor can appoint a replacement to serve out a six-year term, to serve temporarily until a special election can be held, or to hold a special election directly to choose a replacement.
In New Jersey, a replacement for a Senator is picked by the Governor until a special election can be held in one or two years, depending on how close the resignation is to the scheduled primary election season.
On January 16, 2018, current Governor Chris Christie, a Republican, leaves office. If the vacancy happens while Christie is in office, he would likely pick a Republican to replace Menendez, who is a Democrat. That would alter the Senate’s balance of power for the next year. Currently, the Democratic candidate to replace Christie is favored to win next month’s election.
The Constitution allows the Senate to discipline its own members for misconduct, but it also doesn’t bar a member of Congress from holding office after a conviction in court unless treason is involved. The Senate can vote to censure, or publicly criticize, a member by a majority vote, but it takes a two-thirds majority vote to expel a member and create a vacancy.
Technically, the Impeachment Clause can also be invoked by the House to remove a Senator by trial. That actually happened in 1797 when Senator William Blount was accused of treason. The Senate chose to expel Blount instead.
Senate expulsions are extremely rare. Outside of Blount, the other 14 expulsions in Senate history were for members who joined the Confederacy. According to the Senate, only four Senators have been convicted of crimes while in office.
All four resigned, but in one case, the Senator who eventually resigned saw his conviction overturned by the Supreme Court. In March 1920, Senator Truman Newberry of Michigan was convicted of excessive campaign spending, counter to federal and state law, in his 1918 Senate race against car maker Henry Ford. Newberry refused to resign and he appealed the decision to the Supreme Court. In May 1921, the Court ruled for Newberry in a 5-4 decision, stating that a federal law couldn’t regulate a state primary election.
Newberry served for that 14-month period in the Senate while his case was appealed after his conviction. Newberry resigned in November 1922 when he lost his party’s support for re-election, after a three-month debate about his status within the Senate.
In 2015, the Congressional Research Service detailed the scenario of a Senator who remained in office after a conviction. “There is no express constitutional disability or ‘disqualification’ from Congress for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct after having taken an oath of office,” the report said.
In the Senate, a convicted Senator can still vote if present, but the party leadership can change their committee status. And technically, absent their expulsion from Congress, a member can serve while in jail and run for re-election, unless they are convicted of treason.
Back in 1798, Representative Matthew Lyon of Vermont was convicted under the Sedition Act of insulting President John Adams and he was sent off to jail for a four-month term. While in prison, Representative Lyon managed a successful re-election campaign. And in 1801, Lyon cast one of the key votes that resulted in Thomas Jefferson becoming President in the House contingent election.
