There is news about a congressman who is accused of certain very serious crimes.

However I have heard that it is legally possible for someone to run for congress from prison even if they are currently incarcerated.

If someone in the House is arrested in say the first half of 2022, would their seat be vacant until an election is held or would they be allowed to serve legally unless they're expelled?

  • Of course not, otherwise a zealous executive branch official (e.g. mayors, commissioners, governors, the president) could simply arrest congresspeople they disagree with, forcing them to be removed from Congress. Jun 14, 2021 at 16:24
  • 7
    Note that accusation != arrest != conviction. People are often falsely accused, for all sorts of reasons. Even when they are arrested, charges are often dropped for lack of evidence. If an arrested person is brought to trial, they may be found not guilty. And even when they are found guilty, there are many instance where it is later shown to be a wrongful conviction.
    – jamesqf
    Jun 14, 2021 at 16:27
  • 2
    On a related note, members of Congress are expressly immune from arrest per the U.S. Constitution during a session of Congress or while traveling to or from one, except for "treason, felony and breach of the peace" for precisely the reason Azor mentioned - to prevent bogus politically-motivated arrests designed to interfere with the ability of a member of Congress to perform their duties as such. This is in Article I, Section 6.
    – reirab
    Jun 14, 2021 at 23:46
  • Also, there's a third option between "their seat remains vacant" and "they're allowed to serve." If a member of Congress is expelled, resigns, or dies during their term, the executive authority of their respective state has the power to appoint a replacement to serve the remainder of their term. A state or district doesn't lose its representation in Congress just because something happened to one of their members of Congress. This power is granted in Article I, Section 2 for the House and Article I, Section 3 (as amended by the 17th Amendment) for the Senate.
    – reirab
    Jun 14, 2021 at 23:50

1 Answer 1


They would be allowed to serve unless expelled. However, under House rules, once indicted for a crime for which a sentence of two years or longer may be imposed, a representative should resign from any committee or party caucus position they may hold, and upon conviction, refrain from voting until either the conviction is quashed or the representative is reelected. There are no automatic penalties for merely being arrested.

According to the CRS report Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, last updated in 2014, there are no penalties for a representative indicted for a felony, either under the Constitution, statutory law, or the Rules of the House. However, this is slightly out of date, as beginning in the 116th Congress, the rules package for the House of Representatives have changed to include provisions relating to members indicted for a felony, as well as convicted:

  1. (a) A Member, Delegate, or Resident Commissioner who has been convicted by a court of record for the commission of a crime for which a sentence of two or more years' imprisonment may be imposed should refrain from participation in the business of each committee of which such individual is a member, and a Member should refrain from voting on any question at a meeting of the House or of the Committee of the Whole House on the state of the Union, unless or until judicial or executive proceedings result in reinstatement of the presumption of the innocence of such Member or until the Member is reelected to the House after the date of such conviction.

    (b) A Member, Delegate, or Resident Commissioner who has been indicted for or otherwise formally charged with criminal conduct in any Federal, State, or local court punishable as a felony for which a sentence of two or more years’ imprisonment may be imposed should resign from any standing, select, joint or ad hoc committee, and any subcommittee thereof, on which such Member, Delegate, or Resident Commissioner serves, and should step aside from any party caucus or conference leadership position such Member, Delegate, or Resident Commissioner holds, unless or until judicial or executive proceedings result in acquittal or the charges are dismissed or reduced to less than a felony as described in this paragraph.

Rules of the House of Representatives - 117th Congress - Rule XXIII

The report also notes, however, that "There is no express constitutional disability or “disqualification” from Congress for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct". As a result, the only way in which a representative would be expelled for such an offence is as provided in the Constitution:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

US Consitution: Article 1, Section 5, Clause 2

According to Chapter 12, § 13 of Deschler's Precedents, however, this is unlikely to take place until a member's conviction, including any appeals - which would be long after the members' arrest.

Where a Member of Congress has been convicted of a crime, neither the House nor the Senate will normally act to consider expulsion until the judicial processes have been exhausted.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .