Crossing the Line

Can Congress kick out Rep. Trey Radel for buying cocaine? 

Rep. Henry "Trey" Radel (R-FLA)

Rep. Trey Radel, R-Fla., has admitted to breaking the law in attempting to buy cocaine, but didn’t necessarily abuse the power of his office, so he likely won’t be expelled from the House.

Photo by Steve Nesius/Reuters

Last month, Republican Rep. Trey Radel was arrested in Washington, D.C. for attempting to buy exorbitantly priced cocaine from an undercover agent. Radel announced that he would begin intensive inpatient treatment for drug addiction and take a leave of absence, but he plans to remain in his office. Can Congress kick him out?

Yes, but it almost certainly won’t. Under Article 1, Section 5, Clause 2 of the Constitution, both houses of Congress can “punish its members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” But only five members of the House have ever been expelled, three for “disloyalty” after supporting the Confederacy during the Civil War. The last House expulsion occurred in 2002, when Ohio Democratic Rep. James Traficant was kicked out after facing 63 years in prison for convictions of bribery, racketeering, and income tax evasion. The vote on Traficant’s expulsion was nearly unanimous; the sole dissenter, California Democrat Rep. Gary Condit, was facing expulsion rumors of his own after acknowledging an affair with a young intern who was later murdered.*

But congressional representatives have retained their seats after committing worse crimes. In 1856 Rep. Preston Brooks, a pro-slavery Democrat from South Carolina, brutally beat anti-slavery Sen. Charles Sumner with his cane after Sumner delivered an impassioned speech in favor of abolition. Brooks faced congressional censure, a legally toothless public condemnation, but not expulsion, and was soon re-elected to his seat with overwhelming support. Less colorfully, Ohio Republican Rep. Bob Ney clung to his seat for years while denying any connection to the Abramoff scandal, resigning only after pleading guilty to two felony charges. (Ney has since begun a second career dishing juicy gossip about John Boehner’s alleged drunken hijinks.)

Given the frequency of congressional scandals, one might expect a richer record of expulsions. But most disgraced public servants are wise enough to resign rather than face formal removal. Reps. Anthony Weiner, Chris Lee, and Mark Foley resigned in the wake of their respective sex scandals. So did Rep. Raymond F. Lederer, a Pennsylvania Democrat who was convicted of taking a $50,000 bribe from undercover FBI agents. (After serving prison time, Lederer found gainful employment as a roofer.) Politicians unwilling to let go of their office may face nothing worse than a vote of censure, as Rep. Charles Rangel learned in 2010.

Radel may face congressional censure, but he’s unlikely to resign—or be expelled. Radel has stated that he will “continue serving this country,” and though the House Ethics Committee will presumably examine his case, Speaker of the House John Boehner’s press secretary has insisted that Radel’s situation should be handled by the courts. Constitutionally, this decision is probably correct. The Expulsion Clause has historically been interpreted to apply only to criminal activity involving abuse of power, and while Radel pleaded guilty to criminal actions, there is no indication that he abused his official position. Legally speaking, the congressman may have crossed a line, but a cocaine conviction won’t be enough to bump him out of Congress.

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*Correction, Nov. 21, 2013: This article originally described Rep. Condit as a Republican. He is a Democrat. (Return.)