Less than a month after he battles for reelection Nov. 6, Republican Rep. Duncan Hunter is expected in a courtroom to face felony charges that he misused campaign contributions.
The congressman from Alpine pleaded not guilty in August and refused to take himself out of the race, saying the federal indictment alleging fraud and conspiracy was politically motivated. (Even if he had withdrawn, his name would have remained on the ballot.)
If Hunter wins reelection and is subsequently convicted, there is no constitutional provision or House rule that explicitly requires him to lose his seat, even if he is imprisoned and unable to vote on behalf of his district. Whether he would be pressured to resign could largely depend on which party comes out on top in congressional elections.
“You can be found guilty and still serve,” said Loyola Law School professor Jessica Levinson.
Hunter and his wife, Margaret, who has also pleaded not guilty in the case, are scheduled to go to court Dec. 3 for a status hearing. Proceedings were delayed after a defense attorney requested more time go through discovery material. Rep. Chris Collins (R-N.Y.) also is fighting for reelection while under indictment — but his trial doesn’t start until 2020.
The Hunters could face 21 months to five years of incarceration if convicted, according to the San Diego Union-Tribune. In that case, a series of possibilities could play out.
House rules do advise — but do not mandate — that a sitting member sentenced to two or more years in prison step down from committees and refrain from voting.
“No one I know has ever tried to challenge that,” said Matt Glassman of Georgetown University’s Government Affairs Institute.
After his indictment, Hunter broke from standard practice and declined to step down from his committee posts; he acquiesced after House Speaker Paul D. Ryan’s office moved to strip his committee posts, according to Politico.
In the case of conviction, the leader of the majority party can ask — and pressure — a member to step aside. But the only way a member would be forcibly removed is by expulsion.
“I think if Hunter is convicted and it appears that he has to be in prison, there would be enormous pressure from the party leadership for him to step down,” Levinson said. “Because they would want to have a working member — someone who isn’t literally behind bars.”
Whether there would be pressure to resign or eventually a move to expel Hunter could ultimately depend on which party has majority control.
“If Duncan Hunter wins and Democrats flip control of the House, and he is then found guilty, my guess is there will be an enormous pressure to exert the highest punishment,” Levinson said.
If Republicans remain in charge, they will have to weigh whether to chance losing a GOP seat (though Hunter’s district leans conservative) in a required special election.
Optics also could come into play, no matter which party is in charge, Levinson said.
“The party leadership will decide to be lenient or harsh depending on how much he wins by, how much political clout he has and what his fundraising prowess is,” Levinson said.
Expulsion is uncommon. It’s occurred five times in the House, the last time in 2002 after then-Rep. James Traficant, an Ohio Democrat, was convicted of racketeering and other felonies.
In the Senate, there have been 15 expulsions since 1789. Fourteen of the senators were expelled for supporting the Confederacy. An additional five senators were found guilty of crimes, but four resigned and one died before the Senate took action.
Other than expulsion, the House can censure or reprimand a member — milder punishments used on dozens of occasions. In 1979, for example, Charles Diggs of Michigan was censured after he was convicted on 11 counts of mail fraud and 18 counts of making false statements.
Censure requires members to stand at the well of the House — the area in front of the rostrum — to receive a formal and public disapproval, and they are typically stripped of committee duties. Reprimand often comes in the form of a letter or private meeting.
The House Ethics Committee, which has established a subcommittee to investigate and determine whether Hunter violated the House code of official conduct, could also recommend a fine. The committee said its work will not interfere with the FBI investigation and will not comment publicly at this time.
If the House voted to expel Hunter, or any other representative convicted of a crime, it would trigger a special election, which could cost state taxpayers hundreds of thousands of dollars.
This is typically different for the Senate. If a senator resigns, dies or is removed from office, the governor of his or her state can appoint a replacement to serve out the remaining term or, in some cases, until a special election is called. Most recently, Arizona Gov. Doug Ducey appointed Jon Kyl to fill the seat of the late Sen. John McCain.
In California, a special election is typically called within 14 days to fill a House seat. The election is held 126 to 140 days after the election proclamation. That means a vacant seat could remain empty for quite some time.
There are myriad “what ifs” surrounding Hunter’s reelection bid, but Glassman has one theory: