When several women accused Rep. Eric Swalwell, D.-Calif., of sexual assault and misconduct, the congressman, who was running for governor, said he would resign but argued that expelling someone without due process was wrong.
Congressman Suhas Subramanyam, D.-Va., who serves on the House Ethics Committee, agrees that all members are subject to an investigation and entitled to due process. But he argues that members of Congress should hold themselves to a higher standard.
"I'm always an advocate of holding Congress and members of Congress accountable and making sure they're subject to the same laws as the American people," Subramanyam told Morning Edition in an interview with NPR's Michel Martin.
Last week, Swalwell received backlash when rumors began to spread online about him and an alleged history of abusive behavior towards women. The tension came to a head when four women sat down with the San Francisco Chronicle and CNN to discuss their experiences with Swalwell, including alleged unwanted sexual advances and rape. NPR has not independently verified the allegations, and Swalwell has adamantly denied them.
When the interviews were published, Swalwell immediately lost key endorsements for his gubernatorial bid and suspended his campaign on Sunday. There were also demands for him to leave Congress. More than 50 former staffers to the congressman called on him to resign and several House lawmakers indicated they would try to expel him as soon as this week.
Richard Painter, a professor at the University of Minnesota Law School, told Morning Edition the evidence against Swalwell and Rep. Tony Gonzales, R.-Texas, is overwhelming. He told NPR's A Martinez that Swalwell and Gonzales' decision to resign from Congress is a "very good idea" because enduring a full investigation would have been harder.
Gonzales announced his resignation from Congress on Monday after being accused of having a sexual relationship with a staffer who later took her own life. He was facing a congressional investigation into his conduct with the possibility of an expulsion vote, though he did not cite the affair as the reason for his resignation.
"There is a season for everything and God has a plan for us all. When Congress returns tomorrow, I will file my retirement from office. It has been my privilege to serve the great people of Texas," Gonzales wrote on X.
Painter served as chief White House ethics lawyer in the administration of George W. Bush. He says the allegations against Swalwell and Gonzales are "egregious," and their resignations over mere accusations of such wrongdoings are "quite rare."
Painter and Subramanyam discuss how congressional investigations work and why members resign before an investigation is concluded.
Listen to the full conversation by clicking the play button in the blue box above, and read highlights from the conversations below.
Why do Congress members resign when faced with backlash?
Subramanyam said resigning is often the smartest or "best course of action" for members in Swalwell's case, because the Ethics Committee has no jurisdiction over anyone who is not a member of Congress. When the congressperson leaves their position, the investigation is over. Until then, the investigation will continue and the committee will continue to "dig very deep."
"The rules of the House of Representatives say that if you have an affair, a sexual relationship with a staffer who is reporting to you, that's automatic expulsion," he said. "We would still do an investigation."
A House Ethics investigation can take anywhere from a couple of weeks to several years, which is why expulsion votes have become popular in Congress.
"They don't want to wait weeks or months," Subramanyam said. "They want to get to it."
In the same vein, resigning can speed up the process, but also avoid further damage to the members reputation. Painter agreed Gonzales and Swalwell were smart to resign, because if they didn't they would have to answer to the already overwhelming evidence and more.
"If the evidence is overwhelming and they go and lie to the Congressional Ethics Committee and so forth, they just make their problems even worse." Painter said.
"I think they made the right decision, which is to get out of Congress," he concluded.
Who gets due process and why?
Once a staff of investigators and lawyers look closely at the allegations, Subramanyam said the subjects of such complaints are given due process.
He said that everyone is subject to a thorough investigation and due process — it's why the Ethics Committee exists — even when the facts are cut and dry.
"We should hold ourselves to a higher standard, too, because we're supposed to be an example," Subramanyam said. "So I'm always an advocate of making sure that the rules apply to us and the laws apply to us, and a higher ethical standard also applies to us."
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