The House Ethics Committee may not go after 'loyal soldier' George Santos, ethics experts warn

• The House Ethics Committee could investigate George Santos over his alleged malfeasance.
• But experts say the slow-moving panel likely won't drop the hammer on the scandal-plagued lawmaker.
• Santos is more likely to face an indictment from law enforcement authorities outside Congress.

House Speaker Kevin McCarthy, facing ongoing questions about Rep. George Santos, has seemingly identified the House Committee on Ethics as the arbiter of the scandal-plagued New York Republican's fate.

"If ethics finds something, we'll take action," the speaker told CNN on Tuesday, referring to the panel chaired by Republican Rep. Michael Guest of Mississippi. "Right now, we're not allowing him to be on committees from the standpoint of the questions that have arisen."

Earlier this week, McCarthy appeared to confirm that the committee was already investigating Santos, only for an aide to later walk back the Speaker's remarks; the committee has yet to fully organize itself.

But ethics experts warn that the evenly-divided committee — composed of five Republicans and five Democrats — is unlikely to move swiftly or even take significant action on Santos. 

"This is like having your brother-in-law be the judge," said Daniel Schuman, policy director at Demand Progress and a government transparency and ethics advocate.

Experts warn that the committee, which is tasked with regulating the ethical conduct of House members and investigating instances of wrongdoing, is severely hobbled by the mere fact that it operates within the context of a highly political body. Decisions are often made at the behest of party leadership, and lawmakers are hesitant to move against colleagues whose vote they may need down the line.

That's where the Office of Congressional Ethics (OCE) — a separate investigative entity run by a non-partisan staff — could step in. 

Several groups have already filed complaints with the office, which was established in 2008 precisely because members of Congress were failing to adequately investigate one another due to a kind of "detente" that existed between the parties when it came to ethics, according to Schuman. 

But House Republicans recently passed a set of rule changes that hobbled OCE, making it more difficult for them to hire new staff. Ironically, Santos told Insider in January that he thought the rules package was "fantastic," defending the changes.

But despite these challenges, Santos still faces a range of investigations from law enforcement authorities outside of Congress, including federal investigations into his campaign finances and his role in an alleged charity fraud scheme involving a dying dog, along with a recently-revived fraud case in Brazil and a variety of other state and local investigations. 

Ultimately, experts say that Santos is more likely to face accountability from entities outside of Congress than those within. 

And the Department of Justice could simply ask both the Ethics Committee and OCE to stand down, as they've already reportedly done with the Federal Election Commission.

Meredith McGehee, an ethics expert who's worked at both Issue One and the Campaign Legal Center, suggested that the committee — "known for its slow-walking" — is probably "keeping their fingers crossed" that the Department moves against Santos first. 

The 'built-in conflict' of members policing members

With lawmakers asked to investigate other lawmakers — in this case, one whose vote is especially needed for the Republican majority in a closely-divided House chamber — members of the same party have a strong incentive to give the benefit of the doubt to the target of an investigation.

"That's the built-in conflict," said McGehee. "They need Santos's vote, and so far, he has proven to be a loyal soldier."

The committee is evenly split between the parties, but a majority vote is required to open an investigation. In practice, it means any investigation into a lawmaker needs the sign-off of that person's party.

"Even though the members may strive to be fair, ultimately, the partisan composition and lack of independence mean that they will still be — to some extent — responsive to what their leadership wants," said Schuman.

Thus McCarthy, despite his stated willingness to let the process play out, has more control over that same process than is immediately evident. Schuman pointed to the Ethics Committee's admonishment of former Rep. Madison Cawthorn, who had fallen out of favor with McCarthy, as a key example of leadership allowing a legitimate investigation to move forward due to political considerations.

"The bottom line is that Santos will only be punished to the extent to which leadership and the Republicans are willing to let him be punished," said Schuman.

'More serious investigation'

But party leadership can't protect Santos forever. 

The Justice Department has reportedly told the FEC to hold off on any enforcement action as it investigates Santos' campaign finances, signaling an active criminal probe.

And the OCE, despite the new challenges it faces, can still pursue its own investigation of Santos.

The office frequently makes preliminary investigations of complaints against members of Congress, making a referral to the House Ethics Committee if they determine the offense to warrant further inquiry. That recently happened with Democratic Rep. Alexandria Ocasio-Cortez of New York, who now faces an ethics investigation related to her attendance at the 2021 Met Gala.

At the very least, it allows facts uncovered by investigators to come to light, rather than be suppressed for political reasons.

Kedrick Payne, the senior director for ethics at the Campaign Legal Center and the one-time deputy chief counsel of OCE, said the office would likely conduct a "more serious investigation" of Santos than the Ethics Committee, which could simply choose to focus on improprieties in the congressman's financial disclosures.

"The committee, as a general matter, does not like to be aggressive with investigations," said Payne. "That's why the OCE was created."

Schuman said that though it remains to be seen how OCE performs in the coming weeks given the changes, the harm lies with the message sent by changing the rules. "They're sending a message to the OCE staff that unless you do what we want, we're going to come for you," he said.

But Santos may eventually face a criminal indictment, and eventually a conviction.

If what's past is prologue, a conviction would be the point at which McCarthy would actively urge Santos to resign.

"When someone's convicted, it's time to resign," said McCarthy after Republican Rep. Fortenberry was convicted of lying to the FBI in March of last year.

The Nebraska congressman announced his resignation the following day.