Maybe George Santos faces more serious consequences than a slap on the hand at the House Ethics Committee after all. The Republican representative-elect has gotten exposed as a serial liar in his congressional campaign … and by that, we mean of course that Santos got exposed for telling more lies that the usual norm in elections. We’re talking about campaign politics, after all, and most voters tend to be skeptics if not outright cynics about politicians’ claims.

But even with that in mind, Santos’ fabulism extended to the extreme. Does that amount to prosecutable fraud? Nassau County’s DA — a Republican herself — pledged to find out late yesterday:

A prosecutor in New York is investigating Republican Rep.-elect George Santos after he admitted that he lied about significant parts of the biography he presented to voters.

“The numerous fabrications and inconsistencies associated with congressman-elect Santos are nothing short of stunning,” said Anne Donnelly, the district attorney of Nassau County, N.Y. Mr. Santos was elected last month to represent part of Long Island.

Ms. Donnelly, a Republican, added, “No one is above the law and if a crime was committed in this county, we will prosecute it.”

Prosecute Santos for what, exactly? Impersonating a gay Jewish Republican? The Wall Street Journal notes that Donnelly’s office didn’t explain what laws they think Santos may have broken:

It wasn’t immediately clear what potential state crimes Mr. Santos might have committed while running for federal office. Mr. Brosh said he wouldn’t comment beyond the statement and didn’t respond to a question seeking more details on the probe.

Presumably, Donnelly and her team would be looking at fraud charges of some sort. The state of New York has a long and depressing list (Section 190) of all the potential frauds that human ingenuity has created, requiring a statutory response to prosecute. Undoubtedly, there are more yet to be documented in statute as con artists continue to innovate. However, none of these explicitly declare lying in a campaign to be a criminal exercise in fraud.

One could potentially apply “scheme to defraud” (190.60, Class A misdemeanor or 190.65, Class E felony) to this situation, at least hypothetically. That would require a showing of property theft; they might argue that campaign donations and/or the House seat itself is a property of value that Santos acquired via his fraud. From 190.65:

1. A person is guilty of a scheme to defraud in the first degree when he or she: (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises, and so obtains property from one or more of such persons; or (b) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person or to obtain property from more than one person by false or fraudulent pretenses, representations or promises, and so obtains property with a value in excess of one thousand dollars from one or more such persons; or (c) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section 260.30 of this chapter or to obtain property from more than one person, more than one of whom is a vulnerable elderly person as defined in subdivision three of section 260.30 of this chapter, by false or fraudulent pretenses, representations or promises, and so obtains property from one or more such persons.

2. In any prosecution under this section, it shall be necessary to prove the identity of at least one person from whom the defendant so obtained property, but it shall not be necessary to prove the identity of any other intended victim, provided that in any prosecution under paragraph (c) of subdivision one of this section, it shall be necessary to prove the identity of at least one such vulnerable elderly person as defined in subdivision three of section 260.30 of this chapter.

One has to wonder whether a court would accept that theory of a scheme to defraud. This statute clearly aims at a more ‘commercial’ scheme. If the state legislature intended to punish a campaign fraud of the nature that Santos allegedly conducted, the legislature would have more explicitly addressed it.

That brings up another question and a bigger issue. Should we set a precedent where prosecutors can essentially undo elections on the basis of campaign fraud via misrepresentation? Santos might be an extreme enough example (allegedly!) to prompt that kind of response, but the potential for mischief with this precedent would be off the charts.

For instance: Would we feel as comfortable with this idea if the DA and the politician were from opposing parties? What about if a local DA indicts an elected official — especially in federal office — for lying about, say, his or her position on abortion? Climate change? The flat tax? Even if a jury wouldn’t convict on such charges, the risk of this kind of partisan and/or ideological lawfare would destabilize American politics at every level.

Here in Texas, we have already seen this kind of prosecutorial misconduct with attempts to derail Tom DeLay and Rick Perry by the Travis County DA’s so-called “public integrity unit.” This is not a hypothetical threat, in other words — and in DeLay’s case, prosecutors did get a jury to convict. It took an appellate court to throw out the case and rebuke the hyperpoliticized Travis County DA.

A prosecutorial cure for Santos would be worse than the disease. Besides, even if Santos set out to deceive, elections are a caveat emptor process. Voters and political parties have a duty to vet their candidates, scrutinizing their claims before casting their ballots. Voters and political parties have an opportunity to fix this problem when Santos comes up for re-election, which puts the solution into its proper category — the political process. Donnelly and her team should leave it to the voters to fix this problem in 2024, and to learn a hard lesson about proper vetting.

Addendum: That does not mean that the House of Representatives can’t apply its own solution to the problem. They are the ultimate arbiter of who gets seated, and on rare occasions have either refused to seat election winners over issues of fraud or later ejected them. The most recent example took place in 2018, where the House was prepared to refuse to seat Mark Harris over ballot fraud in North Carolina before the state election board ordered a new election and the results vacated. That too would be a legit political solution to a political problem, if the House chose to pursue it by majority vote.

Also, there may be campaign-finance questions for Santos too, which Jazz will cover in a separate post later today. Those would likely fall more to the jurisdiction of the FEC, however, and wouldn’t have much to do with “the numerous fabrications and inconsistencies” that Donnelly cites.