Could a sitting United States Congressional member face Extradition?
Members of the House of Representatives and members of the Senate have been expelled, censured, and reprimanded. Now, for the first time in United State of America’s history, we are seeing something new: a sitting member of the House under investigation by a foreign ally.
Representative George Santos, sworn in on January 7, 2023 as the representative of New York’s Third Congressional District, is now facing a criminal investigation by the Brazilian authorities.[1] They are investigating Mr. Santos for fraud from an incident back in 2008.[2] These charges stem from spending $700 out of a stolen checkbook and usage of a false name.[3] Mr. Santos was set to respond to the case on September 2011 after he admitted to the actions, but he failed to show as he was already in the United States by then.[4] Brazilian authorities were unable to locate Mr. Santos due to his departure from Brazil. Now, with his whereabouts known, the formal investigation process in Brazil will begin again.[5] Even though he had previously confessed to the charges, he now denies them.[6] If Mr. Santos is found guilty, he could face a felony charge and face upwards of five years in prison.[7]
As part of potentially being charged for a felony in a foreign nation, Mr. Santos could face extradition back to Brazil since it appears unlikely that he would willingly return to Brazil to face the charges. The US and Brazil are close allies and “enjoy deep and broad political and economic relations.”[8] There is an extradition agreement in place between the two nations.[9] To carry out an extradition, the offense needs to be considered a crime in the US and in Brazil,[10] be punishable by more than a year in prison in both countries,[11] and Brazil would need to demonstrate that the statute of limitations has not expired for the crimes charged in either country.[12] In the event Brazil is able to prove the above, the US may be faced with the choice of having to extradite a sitting congressional member – something that has never been done before.
To further complicate the matter, the US Department of Justice (“DOJ”) has become involved.[13] Due to the Federal Election Commission (“FEC”) seemingly appearing more and more likely to pursue an enforcement action against Mr. Santos, the DOJ requested the FEC not to pursue any action as the DOJ are carrying out a criminal investigation into Mr. Santos.[14] The DOJ investigation appears to be centered around Mr. Santos and his campaign finances.[15]
Nonetheless, it is uncertain how the US would handle the situation if Brazil does wish to extradite Mr. Santos back to Brazil, especially if the DOJ investigation leads to serious, but different crimes. While the US usually would want to keep a strong relationship with Brazil since the US extradites individuals from Brazil,[16] would this set a dangerous precedence for other nations to try and investigate American congressional members or is this merely an incredibly rare scenario? If extradition is a possibility remains to be seen but it is certain that the international realm will be closely watching to see the outcome.
Jacob Popeck is a staff member of Fordham International Law Journal Volume XLVI.
[1] See Grace Ashford & André Spigarol, Brazilian Authorities Will Revive Fraud Case Against George Santos, N.Y. Times (Jan. 2, 2023), https://www.nytimes.com/2023/01/02/nyregion/george-santos-brazil.html.
[2] See Id.
[3] See Id.
[4] See Id.
[5] See Id.
[6] See Id.
[7] See Id.
[8] See U.S. Dep’t of State, Bureau of Western Hemisphere Affairs, Bilateral relations fact sheet, U.S. Relations with Brazil (2022) https://www.state.gov/u-s-relations-with-brazil/.
[9] See Muri Assunção & Tim Balk, Criminal case against George Santos in Brazil is Revived as NY Congressman-elect set to be sworn-in, N.Y. Daily News (Jan. 3, 2023), https://www.yahoo.com/news/criminal-case-against-george-santos-224800598.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAIHEZJEcpEIluB9IRcl0q1qW1ApH7X5NBWB7mvCwuYlQ0T0ZODRinIZbT9JaTyVwDT8kmNiP-CIOq2aWPpiH1Y-vbRtXlipoP8EPSw3O3hLaXmSaRxblTz2HUjM__iENA6Foj763j_VN3tPiYe71A9W9HXnEguOMyZhLtRS47BZ7.
[10] See Id.
[11] See Id.
[12] See Id.
[13] See Victor Nava, DOJ asks FEC to hold off on action against Rep. George Santos amid criminal probe, N.Y. POST (Jan. 28, 2023), https://nypost.com/2023/01/28/doj-asks-fec-to-hold-off-on-action-against-rep-george-santos-amid-criminal-probe-report/.
[14] See Id.
[15] See Issac Stanley-Becker, Johnathan O’Connell & Emma Brown, Justice Department asks FEC to stand down as prosecutors probe Santos, The Wash. Post, (Jan. 27, 2023), https://www.washingtonpost.com/investigations/2023/01/27/santos-doj-investigation-fec/.
[16] See Press Release, U.S. ICE, Joint US-Brazil Investigation Leads to Arrest of Brazilian National for Alleged Rape of Two Children in New Jersey (Sep. 24, 2021), https://www.ice.gov/news/releases/joint-us-brazil-investigation-leads-arrest-brazilian-national-alleged-rape-2-children.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.