Sen. Robert Menendez faces trial on federal corruption allegations after an appeals court said the New Jersey Democrat’s alleged actions on behalf of a campaign donor weren’t protected by the U.S. Constitution.
The ruling Friday was a victory for the U.S. Justice Department. The government accuses Menendez of taking almost $1 million in campaign donations, luxury travel and other gifts from Salomon Melgen, a Florida eye doctor who sought his help in disputes with the government. The senator faces trial in federal court in Newark, New Jersey.
Menendez’s attorney Abbe Lowell had argued that the Constitution grants members of Congress immunity for their legislative acts, providing in part that “for any speech or debate in either House (Senators and Representatives) shall not be questioned in any other place.” He urged an appellate panel in Philadelphia to dismiss the case and overrule a lower-court judge who said the senator wasn’t protected in meeting with executive-branch officials about policies that affected Melgen.
But the appellate judges said the material they reviewed provided a sufficient basis for the lower court’s decision. “The predominant purpose of the challenged acts was to pursue a political resolution to Dr. Melgen’s disputes and not to discuss broader issues of policy, vet a presidential nominee or engage in informal information gathering for legislation,” the appeals court wrote. “It was not to engage in true legislative oversight or otherwise influence broad matters of policy.”
Prosecutors said the senator intervened to help the eye doctor in a Medicare overbilling case, a contract dispute with the Dominican Republic and visa applications for three girlfriends. Menendez has called the case an attempt to prosecute a 20-year friendship.
The meetings in dispute include one on June 7, 2012, between Menendez and his staff and Marilyn Tavenner, then the acting administrator for the Centers for Medicare & Medicaid Services, to advocate on Melgen’s behalf in the billing dispute. Menendez later called Tavenner to follow up. The senator and Nevada Democrat Harry Reid, then the Senate majority leader, met on Aug. 2, 2012, with Kathleen Sebelius, then-secretary of the U.S. Department of Health and Human Services, to discuss policies that affected Melgen.
In a hearing on Feb. 29, the appellate judges pressed Lowell and Justice Department attorney Peter Koski on how they should analyze the senator’s actions if they weren’t obviously for a legislative purpose or to benefit Menendez. Doing so required U.S. District Judge William Walls, the lower court judge, to assess e-mails, memoranda and witness statements to weigh the senator’s actions.
“You have to inquire into the content and purpose to determine whether or not it is protected by the Speech or Debate clause,” Koski said. Failing to conduct such a fact-driven analysis “risks turning members of Congress into super citizens immune from criminal responsibility,” he said.
Koski said the evidence “overwhelmingly establishes that the purpose of Senator Menendez’s meetings with these executive branch officials was to advance Dr. Melgen’s personal interests involving these specific financial disputes.”
But Lowell argued that Walls erred when he refused last September to dismiss the indictment. Menendez and Melgen have pleaded not guilty to charges of conspiracy, bribery, honest-services fraud and violating the Travel Act, when Melgen paid for the senator’s stay at a luxury hotel in Paris. Menendez was also accused of making false statements on Senate ethics forms about gifts from Melgen.
Lowell said Walls failed to understand that the senator’s contacts with high-ranking administrators were the equivalent of legislative oversight, which is protected, and not corrupt actions benefiting Melgen, as prosecutors say.
At the hearing, the appellate panel asked a series of questions on how a judge should act if a lawmaker isn’t clearly pursuing legislation or holding hearings. In such a case, a judge is supposed to analyze his words and communications in meetings or informal settings to determine whether his actions to help a constituent are corrupt.
In refusing to dismiss the indictment last year, Walls threw out four of the 22 counts in the indictment. He dismissed two bribery counts against each man that related to separate $20,000 donations that Melgen gave in 2011 and 2012 to a legal defense trust fund that benefited Menendez. Walls said prosecutors failed to meet the legal standard to charge those donations as a crime.
Menendez is the 12th senator charged with a crime while in office, and the first since Alaska Republican Ted Stevens, who was found guilty in 2008 of seven corruption-related felonies. The verdict was set aside in 2009 because of prosecutorial misconduct. Stevens was killed in a 2010 plane crash. Melgen faces separate health-care fraud charges in Florida.
(c) 2016, Bloomberg · David Voreacos