George Santos' criminal trial likely not affected by House ethics report, legal experts say
Rep. George Santos leaves the Alfonse M. D'Amato U.S. Federal Courthouse after his appearance in Central Islip on Oct. 27. Credit: Newsday/Steve Pfost
WASHINGTON — Rep. George Santos, responding to a blistering report from the House Ethics Committee that accuses him of engaging in a “complex web” of illicit campaign activity, has argued it will interfere with his ability to get a fair and impartial jury in his federal criminal trial next fall.
“What the ‘ethics committee’ did today was not part of due process, what they did was poison … the jury pool on my ongoing investigation with the DOJ,” Santos (R-Nassau/Queens) tweeted Nov. 16 after the report was released. “This was a dirty biased act and one that tramples all over my rights."
As Santos faces an expulsion vote before the U.S. House next week, legal experts contend his complaints about the impact of the report on his criminal trial will have little bearing on the courtroom proceedings.
“There’s certainly going to be overlap between what the ethics report reviewed and what the [federal prosecutors] are alleging he did wrong criminally,” said Michael Weinstein, a Manhattan white-collar criminal defense attorney specializing in government investigation cases.
Weinstein, who leads the government investigations division at the legal firm Cole Schotz, said that despite the overlap between the congressional and criminal investigations, federal prosecutors have a “much higher standard, a much higher burden” of proving a criminal charge.
“The [Ethics Committee’s] conclusion is not going to have a material impact on the standard and burden and efforts that a criminal prosecutor has to cross in order to get a conviction,” Weinstein said. “I think the one thing it does do for [Santos] is that he’s now able to argue … ‘This taints the jury pool. I can’t get a fair trial. People have already come to the conclusion that I’m guilty.’
"To some degree it muddies the water for the jury pool and enables him to make the argument that he can’t get a fair trial,” he added.
The Ethics Committee launched its investigation into Santos, 35, on Feb. 28. The probe came after a New York Times report two months earlier had found he lied on the campaign trail about key parts of his resume, touting credentials for jobs he never held and education degrees he never obtained.
Santos survived one expulsion vote on May 16, initiated by Rep. Robert Garcia (D-Calif.), and another on Nov. 1 on a measure sponsored by Rep. Anthony D’Esposito (R-Island Park).
Since the release of the Ethics Committee's report, a growing number of lawmakers who voted previously against expelling Santos say he no longer should be a member of the House. Rep. Michael Guest (R-Miss.), chairman of the committee, filed an expulsion measure Nov. 17 that the chamber is expected to consider after returning from the Thanksgiving recess on Tuesday.
Santos is accused of engaging in “unlawful conduct” to deceive campaign donors and campaign fundraising organizations “for his own personal financial profit,” according to the committee's report. The first-term lawmaker has denied any wrongdoing, claiming he was misled by his former campaign treasurer, Nancy Marks of Shirley. Shortly after the report's release, Santos said he would not seek reelection to a second term.
Federal prosecutors have charged Santos with 23 felonies, including wire fraud and identity theft. He has pleaded not guilty to all charges, and his criminal trial in Central Islip’s U.S. District Courthouse is expected to start in September.
Santos’ personal attorney, Joe Murray, argued that the release of the 55-page ethics report violates his client’s “fundamental constitutional right to a fair trial, before a fair and impartial jury of his peers within the Eastern District of New York.”
“I sincerely believe that the prospect of Representative Santos going to trial and winning, scared Representative Guest so bad that he did his absolute best to prevent us from ever having a fair trial through the public release of this disgusting report,” Murray said in a statement.
Guest’s office did not respond to a request for comment, but the report released by the committee notes the panel “was in regular contact with [the Department of Justice] to ensure that its investigation did not unduly interfere with the ongoing prosecution of Representative Santos.”
Santos turned down the opportunity to voluntarily testify before the panel and to provide a written statement, according to the report. Murray said having his client testify before the committee had the potential to undermine his defense in the federal trial.
“I know of no trial attorney who would ever advise their client to voluntarily participate in a political investigation like this wherein my client would reveal our entire defense and defense strategy to his enemies in Congress and destroy our trial strategy,” Murray said.
Sterling Marchand, a white-collar criminal defense lawyer with the Washington, D.C., firm Baker Botts, said it will be difficult for Santos to argue before the court that the jury pool is tainted by the release of the report, noting that case has been “in the national spotlight for quite some time.”
“Most jurors are instructed to set aside any preconceived notions they have about the defendant or the facts, based on any source,” Marchand said. “The jury would be instructed to only consider the evidence and testimony that is presented in the case — not what they may have read or heard from outside sources like the media or this report.”
Santos’ penchant for defending himself in social media posts, and in appearances on social media podcasts, may undercut his argument that the ethics report is biasing a potential jury pool, said Nathan Reilly, a former prosecutor with the Eastern District of New York, which is overseeing the Santos case.
“It's not like Congressman Santos has been silent,” said Reilly, now a white-collar defense attorney with the firm Morrison & Foerster. “He's been out there. Talking about it and giving statements to the press and putting up things on social media, which sort of undercuts to some extent the notion that he is being totally prejudiced by the press coverage, because he's sort of leaning into it.”
WASHINGTON — Rep. George Santos, responding to a blistering report from the House Ethics Committee that accuses him of engaging in a “complex web” of illicit campaign activity, has argued it will interfere with his ability to get a fair and impartial jury in his federal criminal trial next fall.
“What the ‘ethics committee’ did today was not part of due process, what they did was poison … the jury pool on my ongoing investigation with the DOJ,” Santos (R-Nassau/Queens) tweeted Nov. 16 after the report was released. “This was a dirty biased act and one that tramples all over my rights."
As Santos faces an expulsion vote before the U.S. House next week, legal experts contend his complaints about the impact of the report on his criminal trial will have little bearing on the courtroom proceedings.
“There’s certainly going to be overlap between what the ethics report reviewed and what the [federal prosecutors] are alleging he did wrong criminally,” said Michael Weinstein, a Manhattan white-collar criminal defense attorney specializing in government investigation cases.
WHAT TO KNOW
- Rep. George Santos says a report from the House Ethics Committee that accuses him of engaging in a “complex web” of illicit campaign activity will interfere with his ability to get a fair and impartial jury in his federal criminal trial next fall.
- Legal experts contend his complaints about the impact of the report on his criminal trial will have little bearing on the courtroom proceedings.
- Santos faces an expulsion vote before the U.S. House when it returns from its Thanksgiving recess.
Weinstein, who leads the government investigations division at the legal firm Cole Schotz, said that despite the overlap between the congressional and criminal investigations, federal prosecutors have a “much higher standard, a much higher burden” of proving a criminal charge.
“The [Ethics Committee’s] conclusion is not going to have a material impact on the standard and burden and efforts that a criminal prosecutor has to cross in order to get a conviction,” Weinstein said. “I think the one thing it does do for [Santos] is that he’s now able to argue … ‘This taints the jury pool. I can’t get a fair trial. People have already come to the conclusion that I’m guilty.’
"To some degree it muddies the water for the jury pool and enables him to make the argument that he can’t get a fair trial,” he added.
The Ethics Committee launched its investigation into Santos, 35, on Feb. 28. The probe came after a New York Times report two months earlier had found he lied on the campaign trail about key parts of his resume, touting credentials for jobs he never held and education degrees he never obtained.
Third expulsion attempt
Santos survived one expulsion vote on May 16, initiated by Rep. Robert Garcia (D-Calif.), and another on Nov. 1 on a measure sponsored by Rep. Anthony D’Esposito (R-Island Park).
Since the release of the Ethics Committee's report, a growing number of lawmakers who voted previously against expelling Santos say he no longer should be a member of the House. Rep. Michael Guest (R-Miss.), chairman of the committee, filed an expulsion measure Nov. 17 that the chamber is expected to consider after returning from the Thanksgiving recess on Tuesday.
Santos is accused of engaging in “unlawful conduct” to deceive campaign donors and campaign fundraising organizations “for his own personal financial profit,” according to the committee's report. The first-term lawmaker has denied any wrongdoing, claiming he was misled by his former campaign treasurer, Nancy Marks of Shirley. Shortly after the report's release, Santos said he would not seek reelection to a second term.
Federal prosecutors have charged Santos with 23 felonies, including wire fraud and identity theft. He has pleaded not guilty to all charges, and his criminal trial in Central Islip’s U.S. District Courthouse is expected to start in September.
Santos’ personal attorney, Joe Murray, argued that the release of the 55-page ethics report violates his client’s “fundamental constitutional right to a fair trial, before a fair and impartial jury of his peers within the Eastern District of New York.”
“I sincerely believe that the prospect of Representative Santos going to trial and winning, scared Representative Guest so bad that he did his absolute best to prevent us from ever having a fair trial through the public release of this disgusting report,” Murray said in a statement.
Guest’s office did not respond to a request for comment, but the report released by the committee notes the panel “was in regular contact with [the Department of Justice] to ensure that its investigation did not unduly interfere with the ongoing prosecution of Representative Santos.”
Santos turned down the opportunity to voluntarily testify before the panel and to provide a written statement, according to the report. Murray said having his client testify before the committee had the potential to undermine his defense in the federal trial.
“I know of no trial attorney who would ever advise their client to voluntarily participate in a political investigation like this wherein my client would reveal our entire defense and defense strategy to his enemies in Congress and destroy our trial strategy,” Murray said.
Tainted jury pool?
Sterling Marchand, a white-collar criminal defense lawyer with the Washington, D.C., firm Baker Botts, said it will be difficult for Santos to argue before the court that the jury pool is tainted by the release of the report, noting that case has been “in the national spotlight for quite some time.”
“Most jurors are instructed to set aside any preconceived notions they have about the defendant or the facts, based on any source,” Marchand said. “The jury would be instructed to only consider the evidence and testimony that is presented in the case — not what they may have read or heard from outside sources like the media or this report.”
Santos’ penchant for defending himself in social media posts, and in appearances on social media podcasts, may undercut his argument that the ethics report is biasing a potential jury pool, said Nathan Reilly, a former prosecutor with the Eastern District of New York, which is overseeing the Santos case.
“It's not like Congressman Santos has been silent,” said Reilly, now a white-collar defense attorney with the firm Morrison & Foerster. “He's been out there. Talking about it and giving statements to the press and putting up things on social media, which sort of undercuts to some extent the notion that he is being totally prejudiced by the press coverage, because he's sort of leaning into it.”
Laura Figueroa Hernandez is the White House correspondent and previously covered New York City politics and government. She joined Newsday in 2012 after covering state and local politics for The Miami Herald.
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