By Alan Dershowitz
Whenever a prominent political figure is indicted on charges of alleged corruption, serious questions arise. Is the prosecution part of a growing and dangerous trend toward criminalizing policy differences? Does it endanger the free speech rights of contributors? Will it constrain the legislative branch from serving as a check and balance on the executive?
These questions are now being raised in the context of the prosecution of New Jersey Senator Robert Menendez, as they previously were in several other ill-advised prosecutions including those of former agriculture secretary Mike Espy, former presidential candidate John Edwards, the late Senator Ted Stevens, former Congressman Tom Delay and former Texas governor Rick Perry.
The reason these questions arise is not because there is no corruption in government. It is because the laws distinguishing between constitutionally protected political activities and illegal payments to office holders are vague and indeterminate. These laws give prosecutors enormous discretion to determine whether to prosecute questionable transactions. And the courts refuse to second guess prosecutorial decisions even in cases where selective prosecution based on improper considerations seems evident.
It is absolutely essential therefore, that prosecutors take responsibility for assuring that every prosecution of a public figure – most especially of public figures who are in disagreements with the executive branch- is based on hard, incontrovertible evidence that conclusively demonstrates that the elected official deliberately, willfully and knowingly crossed the line from constitutionally protected activity to felonious criminality. It is not enough to base prosecutions on the old saw that “where there’s smoke there’s fire.” In cases involving public figures, the smoke may simply be a manifestation of politics as usual-the sort that allows political fundraisers and bundlers to make significant contributions in exchange for what they hope and expect will be access, support and patronage. Those prosecuting Senator Menendez seem not to have applied this rigorous test.
In a wide ranging 68 page indictment, Menendez is accused of accepting gifts-such as airline flights and hotel rooms-as well as PAC contributions from a Florida ophthalmologist, Salomon Melgen, a close personal friend many years. The government contends that, in exchange for these gifts, Senator Menendez met with administration officials in an effort to advance Dr. Melgen’s interests in a Medicare billing dispute and a port security contract in the Dominican Republic. He is also accused of helping his friend’s “friends” obtain travel visas to the U.S. But because of the long friendship between the Senator and Dr. Melgen, the government will have difficulty proving beyond a reasonable doubt that the Senator’s efforts on behalf of his friend were specifically motivated by gifts rather than by an understandable, if not entirely praiseworthy, desire to help an old friend. Would it be enough if there were mixed motives? Motives are notoriously difficult to establish and a dangerous basis on which to rest a prosecution. I am reminded of the chicken who hoped for a world where his fellow chickens could cross a road without having their motives questioned!
The Supreme Court has recognized that political contributions are an aspect of freedom of expression protected by the First Amendment. In the Citizens United case, the Court said that “influence over or access to elected officials does not mean that these officials are corrupt…” In other words, just because a donor contributes money and gives gifts does not mean that a politician must studiously ignore the donor’s interest-financial or otherwise – in particular policy decisions. It should not be enough for the prosecution to show that a donor’s contributions may have given him access to or influence over the Senator. Prosecutors should have to show that the donor and the Senator made an explicit agreement that a contribution was made in exchange for an official act. The prosecution should have to prove that Senator Menendez took actions that benefitted Dr. Melgen not because he thought the action was right, not because it was in keeping with his consistent positions in the past, not even because they were friends. The government should have to prove beyond a reasonable doubt that those actions were taken pursuant to an agreement that they were given in exchange for the contributions. This will not be an easy burden to satisfy.
Until such time that campaigns are publicly funded, candidates will seek financial support from contributors, who contribute because they want to support a candidate who agrees with their goals, priorities or financial interests. Large contributions get the donor or bundler access and consideration that others lack. They sometimes get them ambassadorships or other political plums. This may not be the best system, but it is, in fact, our current lawful, if not commendable, system. Because so many contributions are motivated by the desire for personal gain, a prosecutor has enormous discretion to decide in any particular case whether prosecution is warranted, thus making such cases subject to politics.
The Menendez prosecution also threatens the role of congressional oversight. Our system of checks and balances depends on each branch being free to check the others. Senator Menendez has challenged the Administration’s policy toward Cuba, expressed concerns over a nuclear deal being brokered with Iran, questioned why an agency would condone throwing good medicine in the garbage, and asked whether a foreign government or the private sector is better at port security. Senators should not have to fear that the Executive Branch will unleash prosecutors to go after politicians who are critical of the administration. Equally dangerous are prosecutors who seek to curry favor with the administration by prosecuting its enemies without even being told to do so.
To protect against unchecked power by the executive, the framers included the “speech or debate” clause in our Constitution, protecting Members of Congress from being prosecuted for exercising their legislative power, including oversight. These protections are fundamental to our system of checks and balances. A questionable prosecution against a disfavored legislator, based on campaign contributions from an old friend followed by actions that might benefit that friend, threatens this balance of power.
That is why all Americans, regardless of party affiliation, must be concerned about the criminalization of policy differences and the excessive discretion vested in those who prosecute elected officials.