The Tragicomedy of George Santos and the GOP

Also, understanding the crimes Santos is charged with

What is the worst fate that could befall a political party? Leaving Donald Trump (sexual assaulter, twice-impeached, insurrectionist, former president who badly lost his effort to hold onto the office and is still denying it on national television, thanks to CNN and their misguided “town hall” Wednesday night) for the moment, it’s George Santos, also a serial liar. Instead of offloading him at the first possible moment, when news of who he really is came to light, Republicans held onto him. They supported him. They wanted his vote in Congress so badly that they revealed to us who they’ve become through their embrace of him. Of course, most of us already knew. We’ve understood the truth about what the Grand Old Party has become for some time.

What could be more plain than the tragedy for a political party of having a George, or is it Devolder, in your ranks? The tragedy of the post-Trump Republican Party is summed up, very tidily, in the person of George Santos.

He lied about his mother’s death and tried to claim the mantle of sympathy for victims of 9/11. He claimed to be Jewish and, then, Jew-ish. There’s nothing George Santos won’t stoop to. Today we learned what DOJ believes it can prove to a jury, beyond a reasonable doubt.

Ahead of Santos’s first appearance in court this morning, DOJ unsealed a 13-count indictment charging him with seven counts of wire fraud, three counts of money laundering, one count of theft of public funds, and two counts of making materially false statements to the House of Representatives. Read the full indictment here. And the press release from the U.S. Attorney’s Office in the Eastern District of New York, which further explains the charges they brought along with DOJ’s Criminal Division, here.

Santos will almost inevitably plead guilty to try to limit his time in custody. While some of the charges will place him in a sentencing guideline range where at least some time in prison is required, he could plead, for instance to the false statements charges, where that might not be the case. However, his prior criminal history is murky and he may end up in a category where no matter what, he has to spend at least some period of time in custody. Here’s hoping.

Prosecutors have also requested the seizure of assets Santos obtained as a result of his crimes. If they can’t be located, substitute assets in their value can be seized.

Let’s take a first look at what these charges require the government to prove.

Wire fraud: The elements of wire fraud are (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud someone out of money; (2) that the defendant had the intent to defraud; (3) that the defendant knew or should have foreseen that interstate wire communications would be used; and (4) that interstate wire communications were in fact used. What differentiates wire fraud from other federal fraud crimes like mail fraud or bank fraud is proof that the defendant made an interstate phone call or electronic communication to execute the scheme. In other words, sending a potential donor an email.

The maximum statutory sentence for wire fraud is 20 years, or 30 years if “the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency.” There was speculation before we saw the indictment that the 30-year penalty could come into play because of Covid. Although counts 1 through 5 of the indictment charge wire fraud, they are in connection with illegal campaign contributions Santos sought. But counts 10 and 11 involved his fraudulent application for and receipt of Covid-related unemployment benefits and they could well trigger the longer provision.

Money laundering: 18 U.S.C. § 1957 is a companion to § 1956, the primary federal money laundering statute. Section 1957 prohibits depositing or spending more than $10,000 of the proceeds from a “predicate offense.” The statutory maximum penalty is 10 years in custody. Santos is charged in connection with transfers of money obtained through illegal campaign contributions to accounts he accessed for personal use.

There, the government has to prove five elements to establish this crime: (1) the defendant knowingly engaged or attempted to engage in a monetary transaction; (2) the defendant knew that the transaction involved criminally derived property (they don’t have to know exactly what the crime was, though); (3) the criminally derived property must have a value that exceeds $10,000; (4) the criminally derived property has to been obtained through the commission of an unlawful activity specified in the money-laundering provisions; and the monetary transaction must have taken place, for purposes of this case, in the United States.

Theft of government property: Title 18 U.S.C. § 641 provides that whoever “steals” any “thing of value of the United States or of any department or agency thereof” shall be fined and imprisoned no more than 10 years so long as the value of the stolen property is over $1,000. If it’s less than that, the crime becomes a misdemeanor punishable by up to a year in prison. The charge here relates to the unemployment benefits Santos obtained by lying about his employment status during Covid, and assuming the government can prove its contention that he obtained over $1,000 he wasn’t entitled to, this is another felony charge.

The government will have to prove Santos stole government property—benefits like this typically qualify under this provision—with the intent to keep them permanently. 

False statements: Republicans may not be intent on holding Santos responsible for the false statements he made on his disclosure forms, but DOJ wants a word here, charging Santos with false statements on both his 2020 and 2022 disclosure forms.

Section 1001's statutory terms are violated if a defendant knowingly makes false, fictitious, or fraudulent statements or representations about a material matter to an agency or department of the United States. The maximum penalty is five years in custody.

“Materiality” is a hot issue in 1001 cases. To be criminal, the statement has to have been capable of influencing the outcome of the endeavor the false statement was submitted in support of. An easy way to understand this is to think about a passport application. If you submit one using a false name and statement about being a citizen, those false statements would be material to the State Department’s decision as to whether to grant a passport. That explains why the test for materiality isn’t whether the false statement actually influenced a government function but whether it had the capacity to influence. The goverment alleges Santos made false statements about his earnings that were submitted to the House Ethics Committee. It’s not difficult to envision some question about whether Santos’s false statements in this regard are material given that Committee’s seeming inertia.

That’s a quick layout of the legal elements the government will have to prove to convict on each of these charges. More likely, they will be reciting those elements and the evidence they have to support them for whichever charges are selected for Santos to plead to.

Santos is a garden-variety con man. It’s likely no one was more surprised than Santos himself when he won the election. He was campaigning for the grift. He would have kept his ill-gotten gains if he’d lost. His unemployment benefits fraud likely would not have come to light. It was his electoral success that set the events that led to his prosecution in motion. Had Santos lost, it’s unlikely any of this would have ever come to light. But Republicans’ unvetted support for him—Elise Stefanik, the Harvard-educated lawyer in the Republican leadership, was a key fundraiser—and insistence that he remain in office has brought about this result. House Speaker Kevin McCarthy has declined to demand his resignation. You are what you tolerate. Whether it’s George Santos or Donald Trump, who took center stage on CNN tonight to repeat his lies and spew his hate, we can know the Republican Party by the company it keeps.

Trump’s performance tonight, and the laughing audience that seemingly enjoyed his denigration of the criminal justice system and of democracy itself, frighten me. We have a lot of hard work ahead of us, something I say a lot but that is nonetheless true if we’re going to hold onto this democracy.

We’re in this together,

Joyce

p.s. Don’t forget that if you see something you want to share, you can hit the “restack” button to share it with other Substackers on Notes. It’s a great way to start learning this new social media option.