The Felon Who Wouldn’t Leave Congress

Michael Grimm just got re-elected to Congress in November, so why should he resign over a minor detail like pleading guilty to a felony?

As first reported by the New York Daily News, the Staten Island Republican will plead guilty to one count of tax evasion in federal court on Tuesday afternoon. Grimm, who was indicted in April on 20 counts of fraud and tax evasion stemming from a health food store he once owned, is apparently going to try to keep his seat in Congress. While he said during his re-election campaign that he would resign if “unable to serve,” initial reports indicate the Republican congressman does not think his conviction should keep him from serving his constituents in New York’s 13th District.

The news that Grimm was set to plead guilty sent shockwaves through the leadership of the Republican Party on Staten Island. The two-term congressman cruised to re-election in November despite the ethical allegations swirling around him, besting former City Council member Domenic Recchia by 12 points. Grimm had planned on regaining his Financial Services Committee membership, which he gave up under pressure when he was first indicted. Grimm has even been actively trying hire staff members for his office in recent weeks after several former aides deserted him.

Reached by phone after news of the plea broke online, Guy Molinari, a longtime Island powerbroker and personal patron of Grimm’s, said he had not heard the news and declined to comment. The office of House Speaker John Boehner also declined to comment. John Antoniello, the chairman of the Staten Island Republican Party, said he had not been informed either but that the party continues to support Grimm.

Meanwhile, politicos were already trying to figure out their next play. Some Staten Islanders predicted that Boehner would only try to oust Grimm if he thought that the seat was likely to stay in Republican hands—a good prospect, many analysts suggested, considering Grimm’s easy win the last time.

The name that most Republicans seem both to expect and dread to consider running is Vito Fossella. The former congressman, a longtime fixture in Staten Island politics, stepped down when it was revealed after a drunk-driving arrest that he had a second family in the suburbs of Washington, D.C. The Republican has frequently sparred with Grimm and thought about running in 2014, but it remains to be seen whether Fossella can withstand the scrutiny of another run, even in an era when scandal-scarred New York pols like Anthony Weiner and Eliot Spitzer have come back to run again.

“Does he have the balls to run again after someone resigns over ethical issues?” asked one Staten Island Democrat.

Daniel Donovan, the well-regarded Staten Island district attorney who has come under criticism for failing to win an indictment in the Eric Garner case, is not widely thought to want to leave his post.

On the Democratic side, many expect former Rep. Mike McMahon to make another run at the seat. McMahon took over when Fossella resigned, but was edged aside two years later by Grimm in the Tea Party wave election year of 2010.

Neither McMahon nor Fossella returned calls for comment.

In the meantime, Grimm faces no legal pressure to leave office. There is no requirement for a member of Congress to resign after pleading guilty to a felony. However, House Rule XXIII suggests that a representative who has been convicted of an offense that may result in at least two years’ imprisonment should “refrain from voting.” A report by the Congressional Research Service notes that members are “expected to abide” by this rule, even though it is technically advisory. Tax evasion carries a maximum penalty of five years, and thus it seems likely that Grimm would be covered by the provision. Tom Rust, a spokesman for the House Ethics Committee, declined to comment to The Daily Beast.

Grimm could be forced from office if he is expelled by a two-thirds vote of the House. The penalty is only rarely imposed, as members often resign before they can be voted out of Congress. Only two members of the House have been expelled since the Civil War, and no one has ever been expelled for a felony committed prior to serving in Congress. As the Congressional Research Service notes, an offense leading to expulsion “has historically involved either disloyalty to the United States or the violation of a criminal law involving the abuse of one’s official position, such as bribery.” Interestingly, if Grimm is expelled, he is not legally prohibited from running in the special election for his seat. And if he is re-elected, the House advisory rules prohibiting him from voting no longer apply.

Should Grimm choose to fight back under those circumstances, he would likely have an easy go of it on Staten Island, considering his clear win in November and the fact that he is pleading guilty to a lesser charge. “Voters knew about this and seemed not to care,” said Roy Moskowitz, a leading Democratic consultant on Staten Island.

Still, his conviction will restart a House Ethics Committee investigation into his actions. The bipartisan committee had originally started to probe Grimm in 2012 but had then deferred any action after a request by the Justice Department. Once Grimm has pleaded guilty, it is unlikely the Justice Department will have any qualms about the House Ethics Committee resuming its investigation. Further, the committee’s rules mandate that it “shall” begin an investigation as soon as a member of Congress is sentenced in federal court.

The conviction won’t be Grimm’s first brush with notoriety. The congressman has been investigated in the past for campaign-finance irregularities involving an Israeli businessman who allegedly illegally funneled money to Grimm’s campaign. He also sparked controversy earlier in 2014 when he threatened a reporter on live television after President Obama’s State of the Union address by saying, “I'll break you in half. Like a boy.”