Q&A of the Day – Could Sheila Cherfilus-McCormick's Indictment Lead to Her Ouster?
Each day I feature a listener question sent by one of these methods.
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Today’s entry: @brianmuddradio Since congress woman Cherfilus-McCormick has been indicted on fraud charges shouldn’t she be removed from Congress? Who is responsible for removing her and can they be petitioned to do so?
Bottom Line: Today’s question comes amid a particularly tenuous time for Republican leadership in the House of Representatives. That’s a dynamic which likely factors into some of the thinking about this that I’ll address in a bit. Let’s start with the questions at hand as there’s an established precedent for the situation.
On November 19th Congresswoman Cherfilus-McCormick was indicted on several federal charges related to her alleged theft of $5 million in federal disaster funds obtained while serving as CEO of Trinity Health Care. She’s alleged to have used the money for personal purposes in addition to funding her first campaign for Congress. The indictment followed a multi-year investigation into this matter and the evidence, which includes $3.7 million she loaned to her political campaign (that she wouldn’t have been able to account for through other means), are established facts. All of this is to say that the indictment is backed by strong evidence in what’s a rather straightforward case. So, let’s get into the precedent and nitty gritty politics behind this.
It’s not all that unusual for members of Congress to find themselves indicted (insert joke here). For example, Cherfilus-McCormick's indictment last year kept pace with what we’ve typically seen. In the prior five years there had been five congressional indictments: Democrats: TJ Cox, Bob Menendez, and Jamal Bowman. Republicans: George Santos and Madison Cawthorn. Notably all the indictments led to convictions – which is typical as prosecutors have been especially careful to build strong cases before bringing indictments against sitting members of Congress (the exception is of course when you’re indicting the former president of the United States whom you’re attempting to prevent from becoming the next president of the United States).
Something important to remember in terms of her removal from office is presumed innocence. This works in Cherfilous-McCormick’s favor for now. While each of the five most recent members of Congress to be indicted were convicted – three of the five went on to complete their elected term under indictment. Most remarkably, former New Jersey Senator Bob Menendez was first under indictment in 2015 and was running for re-election in 2024 when he was convicted on numerous charges and sentenced to 11 years in jail. Of the five examples, only one, George Santos, was expelled from Congress, which is the process that speaks to what today’s note is inquiring about. Short of a conviction and sentencing that literally leads to a member of congress being put behind bars (a la Menedez), the only way they can be removed during an elected term is by expulsion. That’s a formal process. In this example the process would go as follows:
- House Ethics Committee investigation leading to cause for expulsion
- A Resolution introduced to expel the member
- A two-thirds majority vote to expel the member
It’s a high threshold with good reason lest members of a majority party attempt to abuse the expulsion process. Due to that high standard, only 21 members of Congress have been expelled in the country’s history. But even that’s actually misleading. Most of those expulsions happened during the Civil War. Since 1862 only three Congressional expulsions have taken place, including George Santos most recently. That speaks to the unlikelihood of it happening in this instance as Democrats are unlikely to go along with a resolution to oust her. Especially given the thin GOP majority in the House.
On the one hand South Florida Congresswoman Sheila Cherfilus-McCormick represents Florida’s bluest district – Florida's 20th, which she won by nearly 50-points in 2022 – and won without an election in 2024 – as she wasn’t challenged in the general election. This is to say that should Cherfilus-McCormick be ousted from her seat – it's all but certain that another Democrat would fill her place. However, the timing of that outcome could have significant implications for the duration of the current congress.
If McCormick were to leave the seat early, it would be up to Governor DeSantis to call for a special election to replace her. Notably, Cherfilus-McCormick originally won the seat through a special election process to replace the late Alcee Hastings. Governor DeSantis was deliberate in calling for a special election, and the seat remained vacant for 9 months in total. That’s a dynamic with meaningful implications as Republicans maintain an ultra-thin 218-213 advantage. There currently four vacancies (two previously held by Democrats and two by Republicans). Based on the timing of the special elections, the outcome of those elections, and if say for example another Republican were unable to serve, there are scenarios where Democrats could take over House control this year. Democrats are especially mindful of that possibility.
Cherfilous McCormick is running for re-election. Notably she’s drawn numerous challengers in the Democrat primary. The outcome of that primary could be interesting going forward as a win by her could potentially result in her being ousted from Congress in the future if convicted.