Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony
Status of a Member of the House Who Has Been
Indicted for or Convicted of a Felony
Updated October 5, 2007
American Law Division
Status of a Member of the House Who Has Been
Indicted for or Convicted of a Felony
There are no federal statutes or Rules of the House of Representatives that
directly affect the status of a Member of Congress who has been indicted for a crime
that constitutes a felony. No rights or privileges are forfeited under the Constitution,
statutory law, or the Rules of the House merely upon an indictment for an offense,
prior to an establishment of guilt under the judicial system. Thus, under House
Rules, an indicted Member may continue to participate in congressional proceedings
and considerations; under the Constitution, a person under indictment is not
disqualified from being a Member of or a candidate for re-election to Congress.
Internal party rules in the House, however, require an indicted chairman or ranking
Member of a House committee, or a member of the House party leadership, to
temporarily step aside from his or her leadership or chairmanship position.
Additionally, a recent change in the Rules of the House requires the House
Committee on Standards of Official Conduct, generally known as the House “Ethics
Committee,” to either initiate an inquiry by an investigative subcommittee of that
Committee within 30 days of the time any Member of the House has been indicted
or otherwise charged with criminal conduct in any state or federal court, or to report
to the House the Committee’s reasons for not moving forward.
Members of Congress do not automatically forfeit their offices upon conviction
of a crime that constitutes a felony. No express constitutional disability or
“disqualification” from Congress exists for the conviction of a crime, other than
under the Fourteenth Amendment for certain treasonous conduct by someone who
has taken an oath of office to support the Constitution. Members of the House are,
however, instructed by House Rules not to vote in committee or on the House floor
once they have been convicted of a crime for which the punishment may be two or
more years imprisonment. Furthermore, under party rules, Members may lose their
chairmanships of committees or ranking member status upon conviction of a felony.
Conviction of certain crimes may subject — and has subjected in the past —
Members of the House to internal legislative disciplinary proceedings, including
resolutions of reprimand and censure, as well as expulsion from the House upon
approval of two-thirds of the Members. Conviction of certain crimes relating to
national security offenses would result in the Member’s forfeiture of his or her entire
federal pension annuity under the provisions of the so-called “Hiss Act” and, under
more recent provisions of law, conviction of particular crimes by Members relating
to public corruption will result in the loss of the Member’s entire “creditable service”
as a Member for purposes of calculating their federal retirement annuities.
Service in Congress: Qualifications for Holding Office ................1
Committee Chairmanships and Leadership Positions..................2
Refraining from Voting in Congress After Conviction.................3
R ecal l .......................................................7
Status of a Member of the House Who Has
Been Indicted for or Convicted of a Felony
This report summarizes the potential consequences, with respect to
congressional status, that may result when a sitting Member of the House of
Representatives is indicted for or is convicted of a felony.
If a sitting Member of Congress is indicted for a criminal offense that constitutes
a felony, the status and service of that Member is not directly affected by any federal
statute or Rule of the House of Representatives. No rights or privileges are forfeited
under the Constitution, statutory law, or the Rules of the House merely upon an
indictment for an offense, prior to an establishment of guilt under our judicial system.
Internal party rules in the House, however, now require an indicted chairman or
ranking Member of a House committee, or a member of the House party leadership,
to temporarily step aside from his or her leadership or chairmanship position,
although the Member’s service in Congress would otherwise continue.
Once a Member of the House is convicted of a crime that is a felony, certain
potential consequences exist relevant to his or her status as a Member of the House.
It should be noted that Members of Congress do not automatically forfeit their offices
upon conviction of a crime that constitutes a felony. 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.
Members of the House are, however, instructed by House Rule not to vote in
committee or on the House floor once they have been convicted of a crime for which
the punishment may be two or more years imprisonment. Furthermore, under party
rules, Members may lose their chairmanships of committees or ranking member
status upon conviction of a felony. Conviction of certain crimes may subject — and
has subjected in the past — Members of the House to internal legislative disciplinary
proceedings, including resolutions of reprimand and censure, as well as expulsion
from the House upon approval of two-thirds of the Members. Expulsion of a
Member from Congress does not result in the forfeiture or loss of the (former)
Member’s federal pension, but the Member’s conviction of certain crimes may lead
to such forfeiture of retirement annuities, or the loss of all of the “creditable service”
as a Member that one would have earned towards a federal pension.
Service in Congress: Qualifications for Holding Office
Indictment and/or conviction of a crime that is a felony does not constitutionally
disqualify one from being a Member of Congress (nor from being a candidate for a
future Congress), unless a Member’s conviction is for certain treasonous conduct
committed after taking an oath of office to support the Constitution.1 There are only
three qualifications for congressional office, which are set out in the United States
Constitution at Article I, Section 2, clause 2, for Representatives (and Article I,
Section 3, clause 3 for Senators): age, citizenship, and inhabitancy in the state when
elected. These constitutional qualifications are the exclusive qualifications for being
a Member of Congress, and they may not be altered or added to by Congress or by
any state unilaterally.2 Once a person meets those constitutional qualifications, that
person, if elected, is constitutionally “qualified” to serve in Congress, even if under
indictment or a convicted felon.3
Committee Chairmanships and Leadership Positions
Indictment. Although no specific or formal Rule of the House of
Representatives exists concerning the status of a Member who has been indicted, the
political parties in the House have both adopted internal conference and caucus rules
that provide for the temporary loss of one’s position as the chairman or ranking
member of a committee, and the temporary loss of one’s leadership position if the
Member has been indicted for a felony having a possible sentence of two or more
The Republican Conference Rules regarding an indicted member of the
Republican leadership in the House were adopted on January 3, 2005, and provide,
at Rule 26, that “a Member of the leadership shall step aside if indicted for a felony4
for which a sentence of two or more years imprisonment may be imposed.” The
Republican Conference Rules have also provided since 1993 that the “Chairman of
a standing, select, joint or ad hoc committee of the Congress, or any subcommittee
thereof, who is indicted for a felony for which a sentence of two or more years5
imprisonment may be imposed, shall step aside....”
1 The Fourteenth Amendment to the Constitution, at Section 3, provides a disqualification
for one who, having taken an oath of office to support the Constitution, “engages in
insurrection or rebellion against,” or aids or abets the enemies of, the United States. This
disqualification does not appear to be self-executing with respect to a Member, and would
appear to require some act on the part of the House to find and declare a seat vacant on the
grounds of such disqualification.
2 Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779 (1995); Cook v. Gralike, 531 U.S. 510 (2001). See Powell, at 537 n.69, discussing
Madison’s position at the Constitutional Convention that qualifications of the elected “were
fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.” 2
3 The question of “qualifications” does not, however, foreclose each House of Congress
from judging a Member’s “fitness” for office under the authority of Article I, Section 5,
clause 2, in a disciplinary proceeding (see discussion of “congressional discipline” in this
4 Conference Rules, 109th Congress, Rule 26; see discussion in CRS Report RS22034, House
Ethics Rules Changes in the 109th Congress, by Mildred L. Amer.
5 Conference Rules, supra at Rule 25.
The Rules of the Democratic Caucus have had a similar provision since May of
1980 with regard to committee positions whereby a Democratic Member who is
indicted for a felony for which a sentence of two or more years imprisonment may
be imposed would “cease to exercise the powers of chairman or ranking minority
member and shall step aside....”6 In 2005, the Democratic Caucus adopted a
provision requiring a member of the Democratic leadership of the House to step aside
temporarily when they have been indicted for a felony for which a sentence of two
or more years imprisonment may be imposed.7
Conviction. The rules of both the Democratic and Republican parties in the
House of Representatives have generally provided that a Member who has been
convicted of a felony for which a sentence of two years or more may be imposed (or8
who has been censured by the House) loses his or her committee chairmanship.
Refraining from Voting in Congress After Conviction
Although the office of a Member of Congress is not automatically forfeited
upon conviction of a felony, a sitting Member of the House of Representatives
convicted of an offense that may result in two or more years imprisonment should,
under House Rules XXIII (10), “refrain from participation in the business of each
committee of which he is a member, and a Member should refrain from voting” on
any question on the floor of the House until his or her presumption of innocence is
restored, or until the individual is reelected to Congress. The rule is phrased in
advisory, not mandatory, language because the House has raised issues concerning
its authority to mandatorily suspend a Member from voting by a process less than an9
expulsion. Members of the House, however, are explicitly instructed to follow both
“the spirit and the letter” of the House Rules,10 and Members are expected to abide
by the abstention rule. This instruction was emphasized in a 2002 letter from the
House Committee on Standards of Official Conduct to a Member of the House who
had been convicted of multiple felony offenses and was awaiting sentencing. The
Committee stressed to that Member “in the strongest possible terms that if you
violate the clear principles of this provision — that is, for example, by voting in the
6 Democratic Caucus, U.S. House of Representatives, “Rules of the Democratic Caucus,”
amended February 9, 2005, Rule 48.
7 “Rules of the Democratic Caucus,” Rule 50; note discussion in CRS Report RS22034,
supra at 4.
8 See, for example, Rules of the House Democratic Caucus, Rule 49 and Rule 51 (2005);
Rules of the House Republican Conference, Rule 27 (109th Congress). Becasuse these
provisions are merely party conference or caucus rules, as opposed to Rules of the House,
they may simply be changed by the political parties in the House themselves, without the
necessity of the adoption of a formal House resolution, such as a House Rule change would
require. Note Brown and Johnson, House Practice, Chapter 50, at 826-827 (2003). House
Rules are changed by way of adoption of a resolution and may sometimes be effectuated
through unanimous consent or by special order.
9 See discussion of suspension concerning “congressional discipline” below and Deschler’s
Precedents, Chapter 12, § 15, H. Doc. No. 94-661, 94th Cong., 2nd sess., 187 (1976).
10 House Rule XXIII (2).
House — you risk subjecting yourself to action by this Committee, and by the House,
in addition to any other disciplinary action that may be initiated in connection with
your criminal conviction.”11
No comparable provision in House Rules exists regarding a Member who is
merely under indictment for an offense.
Indictment.Each House of Congress has the express authority, under Article
I, Section 5, clause 2, of the United States Constitution, to punish a Member for
“disorderly Behaviour” and, with the concurrence of two-thirds, to expel a Member.
Although the breadth of authority and discretion within each House as to the timing,
nature, and underlying conduct involved in an internal discipline of a Member is
extensive, the traditional practice in Congress, in cases where a Member of Congress
has been indicted, has been to wait to impose congressional discipline, such as
expulsion or censure, against the Member until the question of guilt has been at least12
initially resolved through the judicial system. Members of Congress, it should be
noted, like many other individuals, have been indicted and charged with various
offenses and then been subsequently exonerated in judicial proceedings. The House
has thus been reluctant to remove from Congress individuals who have been lawfully
elected as representatives by their constituents, based merely upon charges in an
indictment. However, no impediment in law or rule exists for ongoing congressional
inquiries concurrent with criminal proceedings (although such actions may
complicate some evidentiary issues in subsequent judicial proceedings, and certain
internal, concurrent congressional inquiries have in the past been postponed or
partially deferred “at the request” of the Department of Justice13). In a recent change
to the House Rules, the House Committee on Standards of Official Conduct is
required generally to initiate an inquiry by an investigative subcommittee of that
committee whenever a Member of the House has been indicted or otherwise charged
11 House Committee on Standards of Official Conduct, “Dear Colleague” letter from the
Chairman and Vice Chairman, April 15, 2002.
12 See, e.g., VIII Cannon’s Precedents of the House of Representatives, § 2205, concerning
Representative Frederick Zihlman of Maryland, indicted December 10, 1929: “Prior to
adjudication by the courts, the House took no note of criminal proceedings brought against
a Member....” Prior to the 1970s the House generally waited until after the final appeal ofthnd
a criminal conviction, see H.Rept. 1477, 94 Cong., 2 sess. at 2 (1976): “The Committee
[on Standards of Official Conduct] believes that the House of Representatives, when
considering an action against a Member who is currently involved in an active, nondilatory
criminal proceeding against him ... ordinarily should follow a policy of taking no legislative
action until the conviction is finally resolved.” However, in more recent cases, the House
has demonstrated that it will take action after a Member’s conviction, but before appeal. See
discussion in this report, below, of Members who have been convicted.
13 See, e.g., “Historical Summary of Conduct Cases in the House of Representatives,”
Committee on Standards of Official Conduct (November 2004), noting at least four such
postponements or deferrals in 1982, 1987, 1988, and 1998.
with criminal conduct in any state or federal court.14 The committee is instructed to
either empanel the investigative subcommittee within 30 days of the indictment (or
other filing of charges), or to report to the House the reasons for not empaneling such
an investigative subcommittee, such as, as noted by the sponsor of the provision, if
the committee members “do not feel that going forward is appropriate.”15
An attempt to mandatorily suspend an indicted Member from voting or
participating in congressional proceedings, however, raises several issues. In general,
elected Representatives and Senators are not in the same situation as persons
appointed to positions in the government with indefinite tenure, nor as private
professionals, who might be suspended for a period of time merely upon suspicion
or charges being levied, because Members of Congress are directly elected by,
answerable to, and personally represent the people of their district or state in the
Congress. The authority of either House to mandatorily suspend a Member from
participation in congressional business has thus been questioned on grounds of both
policy and power because such action would, in effect, disenfranchise that Member’s
entire constituency, deprive the people of their full constitutional representation in
Congress, and would not allow the constituents to replace a Member, such as they
could in an expulsion action.16 In the past, some Members have voluntarily refrained
from participating in congressional matters while under indictment,17 but this does
not appear to be a common practice in more recent times in the past century.
Conviction. Conviction of a crime may subject — and has subjected in the
past — a Member of the House to internal disciplinary action, including a resolution
for reprimand or censure of the Member, up to and including an expulsion from
Congress upon a two-thirds vote of the Members of the House present and voting.
The more recent practice in the House of Representatives has been, in cases of
14 H.Res. 451, 110th Cong., 1st sess., adopted June 5, 2007.
15 153 Congressional Record, H5971 (daily ed., June 5, 2007). (Mr. Hoyer).
16 Although early authorities indicated that the power to suspend a Member from
proceedings was an inherent authority “analogous to the right of expulsion” (see Cushing,
Law and Practice of Legislative Assemblies, Section 627, p. 251[9th ed. 1874]), substantive
arguments and questions have been raised concerning the power of the House or Senate in
this regard. See, for example, discussion in II Hinds’ Precedents, § 1665 (1907) regarding
action on Senators Tillman and McLaurin for fighting on the floor of the Senate. See alsothnd
Deschler’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, 94 Cong., 2 sess., 187
(1976), noting that the “House [has] indicated its more recent view that a Member could not
be deprived involuntarily of his right to vote in the House.” Mandatory suspension,
Members agreed, would “deprive the district, which the Member was elected to represent,
of representation....” 121 Cong. Rec. 10341, April 16, 1975. As discussed above, however,
Members are expected to conform to and abide by the abstention provision after conviction.rdst
H.Rept. 93-616, 93 Cong., 1 sess., 4 (1973), and “Dear Colleague” letter from House
Committee on Standards of Official Conduct, April 15, 2002.
17 VIII Cannon’s Precedents, at § 2205. Although the House took no formal action upon Mr.
Zihlman and his status as a Committee Chair, it was noted that “... in compliance with an
unwritten rule of the House, Mr. Zihlman refrained from active participation in the
proceedings of the House, and the Committee was represented on the floor by the ranking
conviction of a Member of crimes that relate to official misconduct, not to wait until
all appeals are exhausted, but to recognize the underlying factual findings of a
judicial proceeding where guilt of a Member was established, regardless of the
potential legal or procedural issues that may be raised and resolved on appeal.18 The
Rules of the House Committee on Standards of Official Conduct, the House’s
standing ethics committee, specifically provide, in fact, for automatic jurisdiction of
the Committee to open a conduct investigation when a Member has been convicted
in a federal, state, or local court of a felony.19
No specific guidelines exist regarding actionable grounds for congressional
discipline under the constitutional authority of each House to punish its own
Members. Each House of Congress has significant discretion to discipline
misconduct that the membership finds to be worthy of censure, reprimand, or
expulsion from Congress. When the most severe sanction of expulsion has been
employed in the House, however, the conduct has historically involved either
disloyalty to the United States or the violation of a criminal law involving the abuse
of one’s official position, such as bribery.
The House of Representatives has actually expelled only five Members (four
Members and one Member-elect) in its history, three of whom were expelled during
the Civil War period in 1861 for disloyalty to the Union.20 The fourth Member of the
House to be expelled was Representative Michael J. (Ozzie) Myers, of Pennsylvania,
on October 2, 1980, after his bribery conviction for receiving a payment in return for
promising to use official influence on immigration bills in the so-called ABSCAM
“sting operation” run by the FBI.21 The fifth Member of the House to be expelled
was Representative James A. Traficant, Jr., of Ohio, expelled on July 24, 2002, after
a 10-count federal conviction for activities concerning the receipt of favors, gifts, and
money in return for performing official acts on behalf of the donors and the receipt
of salary kickbacks from staff.22
18 See discussion in H.Rept. 96-1387, 96th Cong., 2nd sess., 4-5, In the Matter of
Representative Michael J. Myers (1980). Note beginning of Committee proceedings in the
case of Representative Flood, even after his original trial for bribery ended with a hung jury.thnd
H.Rept. 96-856, 96 Cong., 2 sess., In the Matter of Representative Daniel J. Flood
(1980). See, generally, CRS Report 88-197A, House Discipline of Members After
Conviction But Before Final Appeal, by Jack Maskell, March 1, 1988 (available from the
19 Rules of the Committee on Standards of Official Conduct, Rule 14(a)(4), 18(a) and (e).
20 See House expulsions of Representative-elect John B. Clark of Missouri (1861),
Representative John W. Reid of Missouri (1861), and Representative Henry C. Burnett of
Kentucky (1861), for disloyalty to the Union. II Hinds’ Precedents, at §§ 1261, 1262.
21 H.Rept. 96-1387, 96th Cong., 2nd sess., In the Matter of Representative Michael J. Myers
(1980); 126 Congressional Record 28,953 - 28,978 (October 2, 1980). Representative
Myers was expelled after conviction for bribery, conspiracy, and violation of the Travel Act.
22 H.Rept. 107-594, 107th Cong., 2nd sess., In the Matter of Representative James A.
Traficant, Jr. (2002), 148 Congressional Record H5375-5393 (daily ed., July 24, 2002).
Representative Traficant was expelled after conviction of conspiracy to violate federal
bribery laws, receipt of illegal gratuities, obstruction of justice, conspiracy to defraud the
Although the numbers of actual expulsions from the House are low, some
Members of the House who have been found to have engaged in serious misconduct
were not actually expelled because they chose to resign their seats in Congress (or
lost an imminent election) before any formal action was taken against them by the
House. In addition to the actual expulsions in 1980 and 2002, for example, the
committees reviewing Member conduct have recommended to the House the
expulsion of other Members involved in offenses such as bribery, illegal gratuities,
and obstruction of justice who then resigned before the matter was considered by the
full House,23 whereas other Members convicted of crimes resigned their seats even
before the completion of committee reviews.
In addition to expulsion, the House as an institution may take other disciplinary
actions against one of its Members, including censure, reprimand, and a fine. The
House of Representatives has taken a broad view of its authority to censure or
reprimand its Members for any conduct that the House finds to be reprehensible
and/or to reflect discredit on the institution and which is, therefore, worthy of rebuke
or condemnation.24 A censure or a reprimand, where the full House adopts by
majority vote a formal resolution of disapproval of a Member, may encompass
conduct that does not violate any express law or Rule of the House.25
Concerning a sitting Member of the House (or Senate) who is either indicted for
or convicted of a felony offense, it should be noted that the United States
Constitution does not provide for nor authorize the recall of any United States
officials, such as United States Senators, Representatives to Congress, or the
President or Vice President, and thus no Senator or Representative has ever been
United States, filing false income tax returns, and racketeering.
23 Note, e.g., H.Rept. 97-110, 97th Cong., 1st Sess., In the Matter of Representative Raymond
F. Lederer (1981)[ABSCAM]; and H.Rept. 100-506, 100th Cong., 2nd sess., In the Matter of
Representative Mario Biaggi (1988), [illegal gratuities, obstruction of justice and Travel
Act]. Note also case of Rep. B.F. Whittemore, recommended for expulsion by Military
Affairs Committee for sale of Military Academy appointments, who subsequently resigned
in 1870, and was then censured in abstentia by House (II Hinds’ Precedents, § 1273); and
House censure of John DeWeese after his resignation (also for the sale of Academy
appointments), but before committee reported resolution of expulsion (Id. § 1239). See also
expulsion resolutions for bribery and subsequent resignations of Representatives William
Gilbert, Frances Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, § 1275).
24 H.Rept. 570, 63rd Cong., 2nd sess. (1914); and H.Rept. 27, 90th Cong., 1st sess., 24-26, 29,
In re Adam Clayton Powell (1967)(recommending censure).
25 For a more detailed discussion of disciplinary action taken by the House concerning its
Members, see CRS Report RL31382, Expulsion, Censure, Reprimand, and Fine: Legislative
Discipline in the House of Representatives, by Jack Maskell, and House Committee on
Standards of Official Conduct, “Historical Summary of Conduct Cases in the House of
Representatives” (November 2004).
recalled in the history of the United States.26 Under the Constitution and
congressional practice, Members of Congress may have their services ended prior to
the normal expiration of their constitutional terms of office by their resignation,
death, or by action of the House of Congress in which they sit by way of an
expulsion27 or by a finding that a subsequent public office accepted by a Member is
“incompatible” with congressional office (and that the Member has thus vacated his
seat in Congress).28
The recall of Members of Congress was considered during the drafting of the
federal Constitution, but no such provisions were included in the final version sent
to the States for ratification, and the drafting and ratifying debates indicate a clear
understanding and intent of the Framers and ratifiers of the Constitution that no right
or power to recall a Senator or Representative from Congress existed under the
Constitution.29 As noted by an academic authority on this subject:
The Constitutional Convention of 1787 considered but eventually rejected
resolutions calling for this same type of recall [recall of Senators as provided in
the Articles of Confederation]. ... In the end, the idea of placing a recall provision30
in the Constitution died for lack of support ....
Although the Supreme Court has not needed to address the subject of recall of
Members of Congress directly, other Supreme Court decisions, as well as other
judicial and administrative rulings, decisions, and opinions, indicate that (1) the right
to remove a Member of Congress before the expiration of his or her constitutionally
established term of office resides exclusively in each House of Congress as
established in the expulsion clause of the United States Constitution31 and (2) the
26 Note more detailed discussion of recall, generally, in CRS Report RL30016, Recall of
Legislators and the Removal of Members of Congress from Office, by Jack Maskell.
27 Article I, Section 5, cl. 2.
28 See discussion in Deschler’s Precedents of the United States House of Representatives,
Volume 2, Chapter 7, § 13 (1977), and VI Cannon’s Precedents of the House of
Representatives, § 65 (1935); note, e.g., United States Constitution, Article I, Section 6.
Note also “disqualification” provision in the Fourteenth Amendment, Section 3, where one
may be “disqualified” from holding congressional office for engaging in insurrection or
rebellion against the United States or giving aid or comfort to our enemies after having taken
an oath to support the Constitution (see discussion concerning House “exclusions” and
disqualifications, presumptively on 14th Amendment grounds, of socialist and pacifist
Victor Berger of Wisconsin in 1919, and again in 1920, VI Cannon’s Precedents, §§56-59;
also Powell v. McCormack, 395 U.S. 486, 545, n.83 (1969)).
29 I Elliot, Debates on the Adoption of the Federal Constitution, 143-144, 172, and II Elliot,
supra, at 289 (1888); 3 Farrand, Records of the Federal Convention of 1787, 173 (Appendix
A); note also ratifying debate on lack of authority for state recall in the Constitution, in
Swan, “The Use of Recall in the United States,” The Initiative, Referendum and Recall,
National Municipal League Series, (Munro, editor), at 298, n. 2 (1912).
30 Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall,
at 129 (Harvard University Press, 1989).
31 Burton v. United States, 202 U.S. 344, 369 (1906): “The seat into which he was originally
length and number of the terms of office for federal officials, established and agreed
upon by the States in the Constitution creating that federal government, may not be
unilaterally changed by an individual state, such as through the enactment of a recall
provision or other provision limiting, changing, or cutting short the term of a United
States Senator or Representative.32
No law or Rule exists providing that a Member of the House who is indicted for
or convicted of a crime must forfeit his or her congressional salary. However, a
Member of Congress who is convicted of a crime and then incarcerated, might be
required to forego his or her congressional salary for some period of the incarceration
if it results in the Member being absent from the House. The United States Code
instructs the Chief Administrative Officer of the House to deduct from a Member’s
salary the amount for each day that the Member is absent, except in cases of sickness
of the Member or his or her family.33
As discussed earlier concerning qualifications to hold the office of Member of
Congress, indictment for or conviction of a felony offense is not a constitutional bar
for eligibility to be elected or reelected as a Member of Congress, other than a
conviction for treasonous conduct after having taken an oath of office, under the
inducted as a Senator from Kansas could only become vacant by his death, or by expiration
of his term of office, or by some direct action on the part of the Senate in the exercise of its
constitutional powers”; note, also Biennial Report and Opinions of the Attorney General of
the State of Oregon 313, (April 19, 1935): “[I]t has been uniformly held that jurisdiction to
determine the right of a Representative in Congress to a seat is vested exclusively in the
House of Representatives ... [and] a Representative in Congress is not subject to recall by
the legal voters of the state or district from which he was elected. Should this [state]
constitutional amendment be so construed as applying to the recall of a Representative in
Congress it would to that extent be inoperative.”
32 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531
U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I,
§ 627 (1883). The Supreme Court has expressly found that a state could not have “reserved”th
the power, under the 10 Amendment, to alter terms of a Member of Congress, because
those terms of office (as well as those offices themselves) were only established in the
United States Constitution, and the States thus could never previously have had that power
over Member’s terms to “reserve”: “Petitioners’ Tenth Amendment argument misconceives
the nature of the right at issue because that Amendment could only ‘reserve’ that which
existed before. As Justice Story recognized, ‘the states can exercise no powers whatsoever,
which exclusively spring out of the existence of the national government, which the
constitution does not delegate to them .... No state can say, that it has reserved, what it never
possessed.’” U.S. Term Limits, Inc., at 802; see also Cook v. Gralike, at 522.
33 2 U.S.C. § 39.
“disqualification” provision of the Fourteenth Amendment.34 Additionally, a
congressional censure or expulsion does not act as a permanent disability to hold
congressional office in the future. A person under indictment or a convicted felon,
even one who has also been disciplined by Congress, may run for and, in theory, be
reelected to Congress and may not be “excluded” from Congress, but must be seated,
if such person meets the three constitutional qualifications for office and has been
duly elected.35 Once a Member is seated, however, that Member may be subject to
certain discipline by the House.36 If reelected to the House, a Member who has been
convicted for an offense that barred the Member from voting under House Rules
would have his or her full voting privileges restored upon re-election.37
Thus, under the United States Constitution there is no impediment for the
people of a district or state to choose an individual who is under indictment, or who
is a convicted felon, to represent them in Congress. Furthermore, because the
qualifications for elective federal office are established and fixed within the United
States Constitution, are the exclusive qualifications for congressional office, and may
not be altered or added to by the state legislatures except by constitutional
amendment, the states may not by statute, or otherwise, bar from the ballot a
candidate for federal office because such person is indicted or has been convicted of
a felony.38 The required qualifications, as well as the disqualifications, to serve in
34 Certain statutes, for example the federal bribery law (18 U.S.C. § 201), purport to have
as an express punishment the disability to hold any office of profit or trust under the United
States. Such a disqualification by statute, however, was found by the Supreme Court not
to disqualify a person from being a Senator or Representative in Congress because the only
qualifications and disqualifications for such elective offices are set out exclusively in the
United States Constitution, and these constitutional provisions may not be added to or
affected by statute. Burton v. United States, 202 U.S. 344 (1906).
35 Powell v. McCormack, supra.
36 Although the authority for each House of Congress to discipline by means such as
expulsion or censure is not restricted on the face of the Constitution (except for the two-
thirds requirement to expel), it has been a general practice and policy in Congress not to
expel a Member for past offenses if the electorate knew of the offenses involved, and still
chose to elect or reelect that individual as their representative in Congress. See discussion
in Constitution, Jefferson’s Manual and Rules of the House of Representatives, § 64;rdnd
H.Rept. 570, 63 Cong., 2 sess. (1914), VI Cannon’s §398, 557-558; Powell v.
McCormack, supra at 508; Bowman and Bowman, “Article I, Section 5: Congress’ Power
to Expel - An Exercise in Self Restraint,” 29 Syracuse Law Review 1071, 1089-1090 (1978).
However, both the House and the Senate have otherwise disciplined a Member even after
re-election, such as through censure, for past misconduct even if known to the electorate.
H.Rept. 27, 90th Cong., 1st Sess., supra at 27.
37 House Rule XXIII(10).
38 States may not add qualifications for federal office additional to those established in the
Constitution, such as requiring that a congressional candidate not be a felon or indicted for
a felony. See, specifically, State ex rel. Eaton v. Schmal, 167 N.W. 481 (Sup. Ct. Minn.
McCormack, 395 U.S. 486, 522, 547-550 (1969). See discussion by Alexander Hamilton
in The Federalist Papers, No. 60: “The qualifications of the persons who may ... be chosen,
as has been remarked on other occasions, are defined and fixed in the Constitution, and are
Congress were intentionally kept at a minimum by the Framers of the Constitution
to allow the people broad discretion to send whom they wish to represent them in
Congress.39 That is, the people voting in a district or state, rather than the institutions
of Congress, the courts, or the executive, were meant to substantially control their
own decisions concerning their representation in the federal legislature.
Officers and employees of the United States, including Members of Congress,
do not, upon indictment for any crime, nor upon conviction of every crime that
constitutes a felony, forfeit the federal pensions for which they qualify and the
retirement income that they have accumulated. However, the federal pensions of
Members of Congress will be affected in two general instances: upon the conviction
of a crime concerning any of the national security offenses listed in the so-called
“Hiss Act,” and upon the conviction of any one of several felony offenses relating to
public corruption and abuse of one’s official position in the Congress.
Under the so-called “Hiss Act,” Members of Congress, in a similar manner as
most other officers and employees of the federal government, forfeit all of their
federal retirement annuities for which they had qualified if convicted of a federal
crime which relates to disclosure of classified information, espionage, sabotage,
treason, misprision of treason, rebellion or insurrection, seditious conspiracy,
harboring or concealing persons, gathering or transmitting defense information,
perjury in relation to those offenses, and other designated offenses relating to secrets
and national security offenses against the United States.40 Additionally, under
provisions of law more recently enacted in the “Honest Leadership and Open
Government Act of 2007,” P.L. 110-81, (S. 1, 110th Congress), a Member of
Congress will lose all “creditable service” as a Member for federal pension purposes
if that Member is convicted for conduct (occurring after the enactment of this law
and while that person was a Member) which constitutes a violation of any one of a
number of federal laws concerning corruption in office. These laws include, for
example, bribery and illegal gratuities; acting as an agent of a foreign principal; wire
fraud, including “honest services” fraud; bribery of foreign officials; depositing
proceeds from various criminal activities; obstruction of justice or intimidation or
harassment of witnesses; an offense under “RICO,” racketeer influenced and corrupt
organizations; conspiracy to commit an offense or to defraud the United States to the
extent that the conspiracy constitutes an act to commit one of the offenses listed
unalterable by the legislature.” Because the federal Constitution governs qualifications to
hold federal office, but the States generally regulate qualifications to vote in those elections
(Article I, Sec. 2), there may exist the interesting anomaly of a convicted felon who may run
for federal office but could be barred by State law from voting in that election.
39 Hamilton stated that “the true principle of a republic is, that the people should choose
whom they please to govern them.” 2 Eliot’s Debates 257. See Powell v. McCormack, at
528, 527-536, discussing influence on Framers of England’s “Wilkes case” and the “long
and bitter struggle for the right of the British electorate to be represented by men of their
40 See now 5 U.S.C. § 8311 et seq.
above; conspiracy to violate the post-employment, “revolving door” laws; perjury in
relation to the commission of any offense described above; or subornation of perjury
in relation to the commission of any offense described above.41 As to the loss of
one’s federal pension annuity, or the loss of creditable service as a Member for the
purposes of the Member’s retirement annuity, the nature of the offense is controlling;
and it does not matter if the individual resigns from office prior to or after indictment
or conviction, or if the individual is expelled from Congress.
41 Title IV of the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, 121
Stat. 735 (Sept. 14, 2007)[S. 1, 110th Congress].