Status of a Senator Who Has Been Indicted for or Convicted of a Felony

Status of a Senator Who Has Been
Indicted for or Convicted of a Felony
October 22, 2008
Jack Maskell
Legislative Attorney
American Law Division

Status of a Senator Who Has Been
Indicted for or Convicted of a Felony
There are no federal statutes or Rules of the Senate that directly affect the status
of a Senator who has been indicted for a crime that constitutes a felony. No rights
or privileges are forfeited under the Constitution, statutory law, nor the Rules of the
Senate upon an indictment. Thus, under Senate Rules, an indicted Senator may
continue to participate in congressional proceedings and considerations; and under
the Constitution a person under indictment is not disqualified from being a Member
of or a candidate for reelection to Congress. Internal party rules in the Senate may,
however, provide for certain steps to be taken by an indicted Senator. For example,
the Senate Republican Conference Rules require an indicted chairman or ranking
member of a Senate committee, or a member of the party leadership, to temporarily
step aside from his or her leadership or chairmanship position.
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. Unlike Members of the
House, Senators are not instructed by internal Senate Rules to refrain from voting in
committee or on the Senate floor once they have been convicted of a crime which
carries a particular punishment. Internal party rules in the Senate may affect a
Senator’s position in committees. Under the Senate Republican Conference Rules,
for example, Senators 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 —
Senators to internal legislative disciplinary proceedings, including resolutions of
censure, as well as an expulsion from the Senate 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.

Background ..................................................1
Service in Congress: Qualifications for Holding Office ................1
Committee Chairmanships and Leadership Positions..................2
Refraining from Voting in Congress After Conviction.................2
Congressional Discipline........................................3
Indictment ...............................................3
Conviction ...............................................4
R ecal l .......................................................6
Salary .......................................................8
Election/Reelection ............................................8
Pensions ....................................................10

Status of a Senator 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 Senator is indicted for or is
convicted of a felony.1
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 Senate. No rights or privileges are forfeited under the
Constitution, statutory law, or the Rules of the Senate merely upon an indictment for
an offense. Internal party rules in the Senate may be relevant, however, and the
Senate Republican Conference Rules now require an indicted chairman or ranking
member of a Senate committee, or a member of the Senate party leadership, to
temporarily step aside from his or her leadership or chairmanship position, although
the Member’s service in Congress would otherwise continue.
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.
Under party rules, Members may lose their chairmanships of committees or ranking
member status upon conviction of a felony, and this is expressly provided under the
Senate Republican Conference Rules. Conviction of certain crimes may subject
Senators to internal legislative disciplinary proceedings, including resolutions of
censure, as well as expulsion from the Senate upon approval of two-thirds of the
Members. Expulsion of a Member from Congress does not result in the forfeiture or
loss of one’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

1 For a survey of the status relative to Members of the House, see CRS Report RL33229,
Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, by
Jack Maskell.

committed after taking an oath of office to support the Constitution.2 There are only
three qualifications for congressional office, which are set out in the United States
Constitution at Article I, Section 3, clause 3 for Senators (and Article I, Section 2,
clause 2, for Representatives): 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.3 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.4
Committee Chairmanships and Leadership Positions
No specific or formal Rule of the Senate exists concerning the status of Senator
who has been indicted with respect to chairmanships or ranking member status on
committees of the Senate. However, the political parties in the Senate may adopt
internal conference and caucus rules that may affect a Senator’s leadership and
committee positions and assignments. For example, Senate Republican Conference
Rules 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
Senator has been indicted for a felony; and if the Senator is convicted, the
replacement of the chair/ranking member on the committee.5
Refraining from Voting in Congress After Conviction
Although Members of the House of Representatives convicted of an offense that
may result in two or more years imprisonment are instructed under House Rule XXIII

2 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 Senate to find and declare a seat vacant on the
grounds of such disqualification.
3 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
Farrand 249-250.
4 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
report, below).
5 Senate Republican Conference Rules, 109th Congress, Revised November 17, 2004, Rule
5, paragraph D: “Indictment or Conviction of Committee Chair/Ranking Member. In the
event of an indictment for a felony, the chair/ranking member or elected member of the
leadership shall step down until the case is resolved. Upon conviction, the chair/ranking
member would automatically be replaced.” The Conference Rules are available at
[]. The
Senate Democratic Conference Rules do not appear to be publically available.

(10), to “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), there is no comparable Senate Rule.6
Congressional Discipline
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 the Senate and House as to
the timing, nature, and underlying conduct involved in an internal discipline of a
Member of that body 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 of7
guilt has been at least initially resolved through the judicial system. Members of
Congress, of course, like many other individuals, have been indicted and charged
with various offenses and then been subsequently exonerated in judicial proceedings.
Both the Senate and the House have thus been reluctant to remove from Congress
individuals who have been lawfully elected to represent 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 because of arrangements with the Department8
of Justice).
An attempt to mandatorily suspend an indicted or convicted Member from
voting or participating in congressional proceedings raises several issues. In general,
elected 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 state or district in the Congress. The authority of either
House to mandatorily suspend a Member from participation in congressional

6 It may be noted that even in the even in the House, the applicable Rule is phrased in
advisory, not mandatory, language because the institution of the House has raised issues
concerning its authority to mandatorily suspend a Member from voting by a process less
than an expulsion. See discussion of suspension concerning “congressional discipline”
below and Deschler’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, at 187 (1976).
7 See, e.g., S.Rept. 97-187, at 2. In the House, note also 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 ....”
8 S.Rept. 97-187, at 2: “In order not to interfere with the government’s prosecution of the
criminal case, to avoid any possible prejudice to the Senator’s right to a fair trial and for
other reasons, the Committee deferred further action in this matter pending the completion
of the criminal trial.”

business has thus been questioned on grounds of both policy and power because such
action would, in effect, disenfranchise that Member’s 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 after an expulsion action.9
Conviction. Conviction of a crime may subject a Member of the Senate to
internal disciplinary action, including a resolution for censure of the Member, up to
and including an expulsion from Congress upon a two-thirds vote of the Members
of the Senate present and voting. The Senate has demonstrated that in cases of
conviction of a Member of crimes that relate to official misconduct that the
institution need not wait until all the Senator’s appeals are exhausted, but that the
Senate may independently investigate and adjudicate the underlying factual
circumstances involved in the judicial proceedings, regardless of the potential legal
or procedural issues that may be raised and resolved on appeal.10
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.11 When the most severe sanction of expulsion has been
actually employed in the Senate (and in the House of Representatives), 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

9 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 also
Deschler’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, at 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.
10 S.Rept. 97-187, supra at 10-11. Although the Committee was of the opinion that its
unanimous recommendation of expulsion “reflects its strong conviction that its own
determination of this matter, and that of the Senate, must be made independently of the
jury’s verdict” or the outcome of the appeal, because the ruling on the appeal was expected
to be handed down shortly, the Committee recommended “that the Senate proceed
expeditiously to final disposition of the foregoing resolution only when Judge Pratt has ruled
on the aforesaid motions.”
11 The jurisdiction delegated by the Senate to the Senate Select Committee on Ethics, as set
out in the Committee Rules, includes investigating and adjudicating complaints, allegations
or information that “any Senator ... has violated a law, the Senate Code of Conduct, or any
rule or regulation of the Senate relating to the conduct of any individual in the performance
of his or her duty as a Member, ... or has engaged in improper conduct which may reflect
upon the Senate.” Rules of Procedure, Senate Select Committee on Ethics, S. Prt. 109-7,th
Rule 2 (2005). See S.Res. 338, 88 Cong., 2d Sess. Sec. 2 (1964), as amended.

bribery.12 In the United States Senate, 15 Senators have been expelled, 14 during the
Civil War period for disloyalty to the Union (one expulsion was later revoked by the
Senate),13 and one Senator was expelled in 1797 for other disloyal conduct.14
Although the Senate has actually expelled relatively few Members, and none since
the Civil War, other Senators, when facing a recommended expulsion for
misconduct, have resigned their seat rather than face the potential expulsion action.15
In addition to expulsion, the Senate as an institution may take other disciplinary
actions against one of its Members, including censure or fine. The Senate, like the
House of Representatives, has taken a broad view of its authority to censure or
otherwise discipline its Members for any conduct that the Senate finds to be
reprehensible and/or to reflect discredit on the institution and which is, therefore,
worthy of rebuke or condemnation.16 A censure by the Senate, whereby the full
Senate adopts by majority vote a formal resolution of disapproval of a Member, may
therefore encompass conduct that does not violate any express state or federal law,
nor any specific Rule of the Senate.
The Senate, in a similar manner as the House of Representatives in relation to
its Members, has expressed reticence to exercise the power of expulsion (but not
censure) for conduct in a prior Congress when a Senator has been elected or reelected
to the Senate after the Member’s conviction, when the electorate knew of the

12 See Senate expulsions in United States Senate Election, Expulsion and Censure Cases,

1793-1990, S. Doc. 103-33, at pp. 95-108, Cases 36, 38, 39, 40 (1995). It should be noted,

however, that the Senate Select Committee on Ethics recommended the expulsion of a
Senator in 1995 who was not convicted of any crime, but who was found by the Committee
to have abused the authority of his office in making unwanted sexual advances to women,
enhancing his personal financial position, and for obstructing and impeding the Committee’s
investigation. S.Rept. 104-137 (1995). The House of Representatives has expelled five
Members — three for disloyalty to the Union, and two after conviction of various criminal
corruption charges.
13 Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell,
Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862), Johnson (1862), and
Polk (1862). The expulsion order regarding Senator Sebastian was later revoked. United
States Senate Election, Expulsion and Censure Cases, 1793-1990, supra.
14 Senator William Blount of Tennessee, July 8, 1797, United States Senate Election,
Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5.
15 For example, the Senate in 1981 considered the expulsion of a Senator recommended by
the Senate Select Committee on Ethics (S.Rept. 97-187, supra), after the Senator’s
conviction of bribery, illegal gratuities, conflicts of interest and conspiracy in the so-called
ABSCAM influence peddling probe. The Senator resigned prior to final Senate floor
consideration. Note Riddick and Fruman, Riddick’s Senate Procedure, S. Doc. No. 101-28,
supra at 270. Additionally, a Senator resigned in 1995 after the Senate Select Committee
on Ethics recommended expulsion in S.Rept. 104-137 (1995).
16 In S.Rept. 2508, 83d Cong., 2d Sess. 22 (1954), the Senate Select Committee to Study
Censure Charges explained: “It seems clear that if a Senator should be guilty of
reprehensible conduct unconnected with his official duties and position, but which conduct
brings the Senate into disrepute, the Senate has the power to censure.”

misconduct and still sent the Member to the Senate.17 The apparent reticence of the
Senate or House to expel a Member for past misconduct after the Member has been
duly elected or reelected by the qualified electors of a state, with knowledge of the
Member’s conduct, appears to reflect the deference traditionally paid in our heritage
to the popular will and election choice of the people.18 The authority to expel would
thus be used cautiously when the institution of Congress might be seen as usurping
or supplanting its own institutional judgment for the judgment of the electorate as to
the character or fitness for office of an individual whom the people have chosen to
represent them in Congress.19
Concerning a sitting Member of the Senate (or House) 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

17 See discussion in S.Rept. 2508, 83rd Cong., supra at 20-23, 30-31, concerning McCarthy
censure; and in House, H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969).
18 Note Powell v. McCormick, 395 U.S. 486, 508, 509 (1969); Alexander Hamilton, 2 Eliot’s
Debates 257; note II Hind’s Precedents § 1285, p. 850-852, discussion of jurisdiction of
House after reelection of Member when the “charges against [the Member] were known to
the people of his district before they reelected him.”
19 “Congress has demonstrated a clear reluctance to expel when to do so would impinge ...
on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power
to Expel - An Exercise in Self-Restraint,” 29 Syracuse Law Review 1071, 1101 (1978). For
a discussion of the policy considerations in such a matter, see Report of the House Judiciary
Committee, H.Rept. 570, 63rd Cong., 2d Sess., VI Cannon’s Precedents, § 398, 557-558:
“In the judgment of your committee, the power of the House to expel or punish by censure
a Member for misconduct occurring before his election or in a preceding or former Congress
is sustained by the practice of the House, sanctioned by reason and sound policy and in
extreme cases is absolutely essential to enable the House to exclude from its deliberations
and councils notoriously corrupt men, who have unexpectedly and suddenly dishonored
themselves and betrayed the public by acts and conduct rendering them unworthy of the high
position of honor and trust reposed in them.... But in considering this question and in
arriving at the conclusions we have reached, we would not have you mindful of the fact that
we have been dealing with the question merely as one of power, and it should not be
confused with the question of policy also involved. As a matter of sound policy, this
extraordinary prerogative of the House, in our judgment, should be exercised only in
extreme cases and always with great caution and after due circumspection, and should be
invoked with greatest caution where the acts of misconduct complained of had become
public previous to and were generally known at the time of the member’s election. To
exercise such power in that instance the House might abuse its high prerogative, and in our
opinion might exceed the just limitations of its constitutional authority by seeking to
substitute its standards and ideals for the standards and ideals of the constituency of the
member who had deliberately chosen him to be their Representative. The effect of such a
policy would tend not to preserve but to undermine and destroy representative government.”

recalled in the history of the United States.20 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
expulsion21 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).22
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.23 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 provision24
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 Constitution25 and (2) the

20 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.
21 Article I, Section 5, cl. 2.
22 See discussion in Deschler’s Precedents, supra, at Volume 2, Chapter 7, § 13 (1977), and
VI Cannon’s Precedents, supra at § 65 (1935); note, e.g., United States Constitution, Article
I, Section 6. See also 1 Hinds’ Precedents, at pp. 600-601, Senate Judiciary Committee
Report of August 2, 1861, recommending the finding of a vacancy, but not acted upon by
the Senate.
23 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).
24 Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall,
at 129 (Harvard University Press, 1989).
25 Burton v. United States, 202 U.S. 344, 369 (1906): “The seat into which he was originally
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

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.26
No law or Rule exists providing that a Member of the Senate 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 Senate. The United States Code
instructs the Secretary of the Senate 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.27
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 the28
“disqualification” provision of the Fourteenth Amendment. Additionally, a

25 (...continued)
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.”
26 See specifically, Walberg v. Lenawee County Board of Election Commissioners, File No.

07-2694-AW, Order Granting Plaintiff’s Motion for Summary Disposition, at 2 (Mich. Cir.

Ct., Nov. 6, 2007). U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook
v. Gralike, 531 U.S. 510, 522-523 (2001); Story, Commentaries on the Constitution, Vol.
I, § 627 (1883). The Supreme Court has expressly found that a state could not haveth
“reserved” 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 established only in
the United States Constitution, and the States thus could never previously have had that
power over Members’ 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.
27 2 U.S.C. § 39.
28 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

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.29 Once a Member is seated, however, that Member may be subject to
certain discipline by the Senate.30
Thus, under the United States Constitution, there is no impediment for the
people of a state (or district in the case of a Representative) 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.31 The required qualifications, as well as the
disqualifications, to serve in 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.32 That is, the people voting in a district or state,

28 (...continued)
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).
29 Powell v. McCormack, supra.
30 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 or Senator in Congress. See
discussion in S.Rept. 2508, 83rd Cong., supra; 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
reelection, such as through censure, for past misconduct even if known to the electorate.
31 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.

1918); and U.S. Term Limits, Inc. v. Thornton, supra; Cook v. Gralike, supra; Powell v.

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
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.
32 Hamilton stated that “the true principle of a republic is, that the people should choose

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.33
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 Act; 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 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

32 (...continued)
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
own choice.”
33 See now 5 U.S.C. § 8311 et seq.

described above.34 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.

34 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].