Lies, Crimes, and Politics: The George Santos Case
Sleazy isn't always criminal
The Congressional career of freshman Representative George Santos (R.-N.Y.) is off to a rocky start. Shortly after he was elected last November, flipping a crucial Democratic seat to the Republicans, the New York Times reported that Santos appears to have repeatedly lied about his academic background, work history, and religious and ethnic heritage. Questions are being raised about his finances and the mysterious sources of funding for his campaign. Oh, and to top it off, he's facing renewed criminal fraud charges in Brazil.
George Santos (credit: John Locher/AP)
As evidence of his many lies continues to mount, other New York Republicans have called on Santos to resign. Two House Democrats have filed a complaint with the House Ethics Committee. And perhaps most ominously for Santos, he reportedly is being investigated by both federal and state prosecutors for possible criminal violations.
The Santos implosion raises some interesting questions about when lies can become crimes, and the difference between being a fraud and engaging in criminal fraud. It’s clear that Santos’s behavior is reprehensible. It’s less clear whether he will - or should - face any criminal charges.
A Whole Lotta Lies
During his Congressional campaign Santos appears to have told a wide variety of lies about his background. He claimed to have worked for both Goldman Sachs and Citigroup, but that wasn’t true. He claimed to have founded a nonprofit organization that rescued 2,500 cats and dogs, but no records of the organization have been found. The resume he submitted to the Nassau County GOP said he graduated from Baruch College summa cum laude and received a master’s degree from New York University. Now he has admitted he did not graduate from either institution and has no college degree of any kind.
At various times on social media and elsewhere Santos has claimed to have Jewish heritage and to be the grandson of Holocaust refugees. At other times he has said he is Catholic. Recently he told the New York Post : “I never claimed to be Jewish. I am Catholic. Because I learned my maternal family had a Jewish background, I said I was ‘Jew-ish.’” He has apparently lied about the circumstances of his mother’s death, claiming on social media that it was related to the World Trade Center attacks in 2001 although she didn’t die until 2016.
Investigative reporters also have raised questions about his finances. Santos has claimed to be a landlord and that his family has a substantial real estate portfolio, but the Times could not verify any of the holdings. When he first ran for Congress in 2020, he reported an income of only $55,000.00. By 2022 he was reporting a $750,000 salary from his new company, the Devolder Organization, and was able to lend his own campaign $700,000. He reported earning millions from Devolder but it’s unclear what exactly the company did. Santos has been very vague about how he managed to accumulate so much wealth in such a short period of time.
Santos has apologized for what he calls “embellishing his resume,” but has remained defiant in response to calls for him to resign.
Lies to the Public
In general, lying is not a crime. It’s not a crime to lie to your family, colleagues, or the public. It’s not a crime to fudge a bit on your resume or your online dating profile. It’s generally not a crime to say things on social media that are untrue or even outrageous.
Politicians routinely exaggerate, embellish, spin, or even lie to the public about their records or actions. They do it in campaign speeches, emails, and on social media. Voters pretty much know this and even expect it to some degree. But sleazy political behavior is generally not criminal. If it were, jails everywhere would be overflowing with politicians. The Santos case is an extreme example, but the principle remains the same.
When I made this point on Twitter, some responded, in effect: “So, what, fraud isn’t a crime anymore?” But there’s a difference between being a fraud – being a phony – and committing the crime of fraud. You can be a fraud without being guilty of fraud.
There’s no doubt Santos is a fraud, in that he is not who he has claimed to be. But the federal crime of fraud requires that a defendant deprived a victim of money or property through material misrepresentations. Lying on your resume or making false claims on social media is usually not going to qualify.
Voters and other Republicans in New York were deceived by Santos. But criminal law draws a distinction between being deceived and being defrauded. Deception alone generally is not a crime.
Usually for political lies we think in terms of political remedies, not criminal ones. If an employer discovers an employee lied on his resume, the employee might expect to be fired. The same should be true here. The proper remedy would be for Santos to lose his job. The honorable thing would be to resign, but that’s not happening so far.
The House Ethics committee can impose sanctions. The House could even vote to expel Santos, with a 2/3 majority vote. But with the House in the hands of a slim Republican majority that needs every seat, neither of those seems very likely.
The ultimate political remedy belongs to the voters: they can punish an errant politician by refusing to support or vote for him. Unfortunately, in this case that could require waiting two years for the next election; there is no process for the voters to recall a Member of Congress.
Lies Connected to Particular Fundraising Appeals
If there were evidence of material lies connected to particular fundraising appeals, that could potentially amount to fraud. For example, suppose Santos had targeted fundraising emails to the Jewish community and specifically asked for support as a fellow Jew whose ancestors had fled the Holocaust. That might be considered a material misrepresentation that deprived victims of their money in the form of campaign contributions.
The special counsel investigating former president Trump reportedly is investigating a similar allegation. The House Select Committee on January 6 reported last summer that in the aftermath of the 2020 election Trump sent out appeals to raise money for an election defense fund that didn’t exist. The money allegedly was used for other purposes, not to fight the election results. Special counsel Jack Smith is reportedly probing several Trump entities over their fundraising and the use of the money they received from donors.
Trump’s repeated lies on social media about the allegedly stolen election, like Santos’s lies, are not criminal. Such background falsehoods are not sufficiently connected to a particular scheme to defraud. But if Trump used such lies to solicit money from donors that was then used for something else, that could amount to criminal fraud.
My Santos hypo above would not be as strong a case. Although Santos in that hypo lied about his background, the money raised presumably would still be used for his campaign, as promised. What makes the Trump allegations a stronger case for fraud is not just using lies to raise the money but then allegedly using the money for purposes other than what was promised.
I haven’t seen any allegations against Santos that would be directly analogous. But if he engaged in similar phony fundraising appeals, that could be a case where lies do result in a criminal investigation.
Lying to the federal government is another exception to the general rule that lying is not a crime. Such lies can violate a criminal statute called False Statements, 18 U.S.C. § 1001. The statute applies to any materially false statement made knowingly and willfully in a matter within the jurisdiction of any branch of the federal government. The statement does not need to be under oath. The statute also prohibits concealing material facts from the government by a trick, scheme, or device, when there was a duty to disclose the information concealed.
This statute is commonly used to prosecute public officials and candidates who falsify required reports. For example, candidates for Congress are required to file financial disclosure statements with the Office of Congressional Ethics. Campaigns are required to file reports with the Federal Election Commission concerning their donations and campaign finances. Knowing false statements on those reports are punishable by Section 1001, a five-year felony.
Allegations of potential fundraising and financial improprieties quickly suggest potential false statements charges. If it’s true there was misconduct related to personal finances or funding the campaign, then you would expect those involved to conceal that misconduct by filing false reports.
Lies on social media are not covered by 1001 because they are not directed at the federal government as part of a proceeding or matter within the government’s jurisdiction. And lies on a resume Santos submitted to the Nassau County Republicans, a private organization, likewise would not be covered. But if Santos knowingly submitted false reports about his personal or campaign finances, that could expose him to prosecution.
False statements can be challenging to prove. The prosecution must establish that the falsehoods were knowing and deliberate, not the result of mistake, confusion, or uncertainty about what was required to be disclosed. But if Santos is going to end up facing any federal criminal charges, false statements is probably the most likely candidate. I suspect it is a primary focus of the investigation by federal prosecutors.
Campaign Finance Violations
As I mentioned, questions have been raised about Santos’s finances and the sources of some of the money for his campaign. This raises the possibility of campaign finance charges based on contributions that were concealed, falsely reported, exceeded legal limits, or otherwise were made in violation of campaign finance laws.
Campaign finance investigations often result only in civil penalties. Because they are strictly regulatory crimes, the government is required to prove not merely that the defendant intended to do what he did but that he knew it violated the law (contrary to the general rule that ignorance of the law is no excuse).
The most high-profile recent example of criminal campaign violations was the guilty plea by Michael Cohen, Trump’s former personal attorney, in 2018. Cohen pleaded guilty to making an excessive campaign contribution and an illegal corporate contribution to the Trump 2016 presidential campaign by arranging for the Trump Organization to make secret hush-money payments to two women who had affairs with Trump.
(At the time of Cohen’s guilty plea, he said he was directed to make the payments by “Individual 1” - Trump himself. This has led to a lot of speculation about why Trump was not charged as well, at least once he left office. I suspect a key reason may be the challenges of meeting the heightened intent requirements for a criminal campaign violation. Cohen pleaded guilty and admitted his knowledge - something Trump presumably would not do.)
Campaign finance violations can result in charges not only under those laws but also related charges such as false statements (for filing false FEC reports) and conspiracy to defraud the United States (by interfering with the lawful functions of the FEC).
At this point it’s unclear whether Santos has any potential criminal exposure here. But a prosecution based on campaign finance violations is more likely than one based on his lies about his background.
Sleaze, Crime, and Politics
I frequently tell my students there is a lot of sleazy, unethical, rotten conduct that isn’t criminal. Santos is a liar and a fraud who does not deserve to be in Congress. But his lies about his background almost certainly fall into that “sleazy but not criminal” category.
There may be New York state criminal charges implicated by Santos’s conduct, and state prosecutors reportedly are investigating. But when it comes to federal crimes, the most likely potential charges relate to Santos’s personal and campaign finances and reports he filed with the federal government, not to his phony resume.
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