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The Bob Menendez Trial Is Set To Begin, And It Could Have Big Implications In Washington

Bob Menendez

As Congress returns to work from its summer recess, a trial begins in New Jersey that could have huge implications for the balance of power in the Senate, at least on a temporary basis:

NEWARK — The senator paused in a corridor of the federal courthouse here last month to oblige a beckoning courtroom sketch artist.

The artist spun around her canvas and Senator Robert Menendez of New Jersey looked briefly at her sketch of the courtroom, the sharp royal blues of his suit and broad charcoals of his outline a familiar form to the former lawyer, but his place in the painting a jarring shift: the defendant’s chair. His smile mixed with a grimace before he disappeared through the double wooden doors to the courtroom.

The moment underscored the unusual predicament facing Mr. Menendez, a senior senator: For the first time in 36 years, a sitting United States Senator is facing a federal bribery trial, one that comes as a bitterly divided Congress reconvenes amid the unrelenting turbulence of the Trump administration.

Since his indictment more than two years ago, Mr. Menendez, a Democrat, has steadfastly proclaimed his innocence, and last week he reiterated that. “I am going to be exonerated,” he said in a brief interview on Wednesday with reporters following a rally protesting President Trump’s immigration policies.

Mr. Menendez is charged with 12 corruption-related counts, including six counts of bribery and three counts of honest services fraud.

Aside from the fate of Mr. Menendez, the outcome of the trial could also have implications on how the government defines relationships between donors and politicians.

“This is a serious case,” Judge William H. Walls, who will preside over the trial, repeatedly reminded potential jurors during the selection process. “It’s not a junky jeopardy matter that you see on TV in these supposed judge cases. This is real stuff.”

Opening statements are scheduled for Wednesday, but legal sparring began picking up last week, as Mr. Menendez’s team took exception to a pretrial brief from prosecutors, which summarized the indictment and laid out the government’s legal arguments.

“The first 16 pages of this ‘brief’ seem designed solely to generate adverse pretrial publicity for the defendants, giving the media a rhetorically florid preview of the prosecutors’ opening argument,” wrote Raymond M. Brown, one of Mr. Menendez’s lawyers, in a response.

The retort from the defense was a reminder of what is at stake for Mr. Menendez: Not only must his team win over the jury that will hear the criminal case, but the senator must preserve his standing with voters, who will decide next year whether to re-elect him.

Mr. Menendez, 63, lives in Paramus, in suburban Bergen County, but his political roots are deep in the heavily immigrant urban communities of Hudson, Essex and Union Counties. His career was a methodical climb up the rungs of New Jersey politics, beginning as a mayor, a state legislator, a Congressman and, since 2005, a U.S. senator.

The trial, which is expected to last six to eight weeks, hinges not necessarily on the concrete evidence that the government has collected, but rather on subjective questions about intent, friendship and “official acts.”

Indeed, the defense for Mr. Menendez is unlikely to dispute some of the facts; that Dr. Salomon Melgen, a wealthy Florida ophthalmologist, bestowed on the senator lavish gifts of private flights, luxury accommodations and free vacations – all which Mr. Menendez initially failed to disclose — and he made more than $700,000 in direct and indirect political contributions to Mr. Menendez.

The legal case revolves around whether those gifts were permissible as gifts a friend could give to another, or whether they were part of a longstanding bribery arrangement where Mr. Menendez would intervene to protect the financial and personal interests of Dr. Melgen in return for his gifts and donations.

“That’s one thing that makes this case interesting: It asks the existential question as to when friendship ends and corruption begins,” said Robert Mintz, a former federal prosecutor from the U.S. attorney’s office in Newark.

The Menendez team asserts that the senator and the doctor have been close friends for more than 20 years, and that Dr. Melgen’s generosity was simply his way of sharing his wealth with a close friend.

But the prosecution argues that they were part of a corrupt pact to trade favors for influence. And, in a brief filed in court on Wednesday, prosecutors argued that even in a friendship, defendants could be found guilty of corruption.

“With respect to claims of friendship in particular, it is not uncommon for defendants to establish some evidence of friendship in bribery cases but still be found guilty,” the brief stated.

The prosecution will also attempt to show that the timing of Dr. Melgen’s gifts corresponded with Mr. Menendez’s actions on his behalf, and that pattern established the quid pro quo necessary for a bribery conviction.

When Dr. Melgen needed help to resolve a contract dispute for a company he owned operating X-ray equipment in the Dominican Republic, he donated $60,000 to various political groups and super PACs supporting Mr. Menendez, the brief stated. On the same day, Mr. Menendez met with an assistant secretary on the state to press the issue, according to the brief.

When Dr. Melgen needed quick changes to a Medicare reimbursement program, he donated $300,000 through his company to Majority PAC, a super PAC supporting Democratic candidates for Senate. The same day, Mr. Menendez met with officials at Centers for Medicare and Medicaid Services, and a month later, with Kathleen Sebelius, then the secretary of Health and Human Services, according to the brief.

Amber Phillips summarizes the legal case against Menendez:

2006: Menendez is elected to the Senate.

As soon as 2006: Menendez takes weekend and week-long vacations to the Dominican Republic, Florida and Paris with Melgen, on the doctor’s private jet, prosecutors would later allege.

2012: Menendez gets reelected. Melgen is a major donor, contributing some $600,000 to super PACS to help his reelection campaign.

2012: An anonymous tipster reaches out to media outlets and the FBI to claim Menendez was paying for underage prostitutes while in the Dominican Republic. Those allegations didn’t pan out, but they spurred the government’s closer look at Menendez’s relationship with Melgen, The Post’s Paul Kane and Carol Leonnig reported.

April 1, 2015: Menendez is indicted on federal corruption charges. It is the first time in a generation that a sitting U.S. senator is indicted by the administration of his own party.

The Justice Department accuses Menendez of using his official position to help Melgen get around U.S. government roadblocks for his business and personal ventures. Melgen is also indicted.

The indictment alleges the men engaged in a quid pro quo since Menendez was first elected, detailing:

  • Menendez took 19 free rides on Melgen’s private jets to luxury resorts around the world, sometimes bringing guests.
  • Menendez helped three of Melgen’s foreign-born girlfriends get visas to visit the United States.
  • Over a period of four years, Menendez held several meetings with U.S. health officials to help Melgen settle an $8.9 million Medicare payment dispute, at one point asking then-Senate majority leader Harry M. Reid (D-Nev.) to help out.
  • Melgen made more than $600,000 in campaign donations to super PACs to get Menendez reelected in 2012.
  • As Melgen was emailing Menendez’s staff in April and May 2012, promising to donate to Menendez’s campaign, prosecutors allege Menendez reached out to top State Department officials to urge them to enforce a port-security contract with the Dominican Republic that would benefit Melgen’s company.

Both men deny the charges. Menendez has explained that he and Melgen are old friends; they’ve attended children’s weddings and given each other birthday gifts, and they’ve vacationed together. He said he was treating Melgen like any other constituent in need.

“I’m angry and ready to fight,” Menendez tells his supporters the night of the indictment.

Hanging over the charges against Menendez, though, is a case involving another elected official that resulted in an important decision of the U.S. Supreme Court that could end up playing a crucial role in the fate of New Jersey’s Senior Senator. In September of 2014, former Virginia Governor and his wife were convicted on a long list of charges stemming from their relationship with a high-profile Virginia businessman who had provided many benefits to the Governor and his family during the time he was in office. These benefits included mundane items such as jewelry and a shopping spree trip to New York City by Mrs. McDonnell, picking up the expenses related to the wedding of the McDonnell’s daughter, and other payments over the course of the Governor’s time in office. Federal prosecutors alleged and were ultimately able to convince a jury, that these payments were made in exchange for McDonnell providing access to state offices and officials for the donor and his company, which was seeking approval by state regulators for various products that it produced. McDonnell appealed the verdict and, while the Fourth Circuit ruled against him, he ended up winning in the U.S. Supreme Court after which prosecutors ultimately decided not to seek a second trial. Like McDonnell, Menendez is essentially accused of providing access to government resources in exchange for the gifts provided by his friend. However, in its decision the Supreme Court held that the prosecution and the District Court went too far in relying upon a definition of so-called ‘honest services fraud’ in proceeding with the case against him, and that the law basically requires some showing that the accused committed an illegal act in exchange for whatever benefits may have been provided to him. Simply lobbying on behalf of the gift giver with regulators or legislators was not sufficient to justify a guilty verdict. As a result, the Court vacated the verdict against the former Governor and held that any subsequent trial would have to rely on something more than what prosecutors were able to prove in McDonnell’s trial. For obvious reasons, this holding could have significant implications for the Menendez case, and it will likely be heavily relied upon by his attorneys both as an argument to preclude the trial from getting to the jury altogether, and in post-verdict motions should he be found guilty.

Like McDonnell, Menendez is essentially accused of providing access to government resources in exchange for the gifts provided by his friend. However, in its decision the Supreme Court held that the prosecution and the District Court went too far in relying upon a definition of so-called ‘honest services fraud’ in proceeding with the case against him, and that the law basically requires some showing that the accused committed an illegal act in exchange for whatever benefits may have been provided to him. Simply lobbying on behalf of the gift giver with regulators or legislators was not sufficient to justify a guilty verdict. As a result, the Court vacated the verdict against the former Governor and held that any subsequent trial would have to rely on something more than what prosecutors were able to prove in McDonnell’s trial. For obvious reasons, this holding could have significant implications for the Menendez case, and it will likely be heavily relied upon by his attorneys both as an argument to preclude the trial from getting to the jury altogether, and in post-verdict motions should he be found guilty.

Much of the pretrial maneuvering over the summer has involved the timing of the trial and the question of whether or not Menedez will be given accommodations for Senate business while the trial itself is in session. At one point early on the process, Menendez sought to get the trial moved closer to Washington D.C., arguing that he needed to be in Washington to attend to his duties in the Senate, but the Judge presiding over the case rebuffed those efforts. This means that Menendez will have to figure out how to get between Washington and New Jersey, where the trial will take place. Additionally, Menendez’s lawyers had sought to get leave from the Judge for their client to be absent from the courtroom, or for proceedings to be delayed, when he needs to be there for a vote or committee hearing. The Judge also rebuffed those efforts, meaning that Senate Democrats could be down a vote when it comes to upcoming important votes on issue such as the budget for the upcoming Fiscal Year, the debt ceiling, tax reform, and possibly even health care reform if Republicans decide to take that issue up again despite spectacularly failing to do so over the summer before leaving for the August recess. Whether this will have a real impact on how the Senate proceeds remains to be seen, though.

Beyond the immediate impact that the Menendez trial will have in Washington, there’s another respect in which the case could have an impact on the balance of power in the Senate and the fate of some legislation, at least in the short-term. If Menendez is convicted and forced to leave the Senate, then his replacement will be named by the Governor of New Jersey and that replacement will serve until the outcome of a Special Election to be held in the future but in no case any later than the midterm election in November 2018. While it’s likely that the winner of that Special Election would be whoever ends up winning the nomination of the Democratic Party for the seat, it’s possible that in the interim we could see a Republican in the seat just as Jeffrey Chiesa, who had previously served as Attorney General under current Governor Chris Christie, was appointed to replace the late Frank Lautenberg. Chiesa ended up serving until Cory Booker was elected in a Special Election that was held in October 2013, some three months after Lautenberg had passed away and created the vacancy. The current Governor of New Jersey, of course, is a Republican and would likely appoint another Republican as the interim Senator for the state pending a Special Election which would also be scheduled by the sitting Governor at the time the vacancy is created.

\As The New York Times outlined last month, this could create an opening for the Senate GOP for at least a brief period of time:

If Mr. Menendez, a Democrat, is convicted and then expelled from the United States Senate by early January, his replacement would be picked by Gov. Chris Christie, the Republican governor of New Jersey and an ally of President Trump.

That scenario — where Mr. Menendez’s interim replacement would more than likely be a Republican — would have immediate and far-reaching implications: The Republicans would be gifted a crucial extra vote just as the party remains a single vote shy in the Senate of advancing its bill to dismantle President Obama’s signature health care law. Those potential consequences only heighten the drama around the first federal bribery charges leveled against a sitting senator in a generation.

“This one vote, this one vote — if he’s convicted or does a plea deal — could change the course of history on Obamacare. It’s remarkable,” said Steve Lonegan, a New Jersey Republican who unsuccessfully ran for Senate three years ago.

He added, “That’s a big ‘if.'”

It’s enough to have Democrats anxious. “Many of us have a personal concern about Bob Menendez,” said Robert G. Torricelli, a former Democratic senator of New Jersey. “But there’s also an overriding concern about the Republicans’ strengthening their control in the Senate and, in the near term, being able to repeal Obamacare and 16 million people losing their health care.”

With Mendendez’s trial set to last about six weeks, and jury deliberations that could take a week or more after that, it’s not clear how long it will take for the case to come to an end, but it seems quite likely that we’d see a verdict announced well before the end of the year. This is important because the New Jersey Governor will remain a Republican until at least January 16, 2018, when the person elected in this November’s election would take office. If Christie’s Kim Guadagno were to win the election, then this deadline would be meaningless since the Governor’s mansion would remain in Republican hands for at least another four years. However, this date and the timing of Menendez’s trial could prove crucial if Democratic nominee Phil Murphy wins in November. In that case, the seat would most likely remain safely in Democratic hands regardless of whether or not Menendez is convicted. As things stand right now, all of the polling available points to a big win by Murphy in November, which means that the Governor of New Jersey would be a Democrat after Christie leaves office on January 16th.

This foreboding timeline is what has many Democrats nervous about the outcome of the trial. As it turns out, though, the question of who might get to appoint a Menendez replacement if he is convicted and either resigns or is removed from the Senate is subject to several caveats that could calm many of these Democratic feats.

The most important point to keep in mind is that delivery of a verdict would not mean that Menendez is automatically removed from the Senate. Under Senate rules, that can only occur upon conviction of a crime and/or an ethics investigation that ultimately leads to the full Senate voting on whether or not he shoud be removed. Under Federal law, however, a verdict does not create a “conviction.” That does not occur until a defendant is actually sentenced based on the verdict issued by a Federal District Court Judge or a jury. Unlike the procedure in some states, though, sentencing in noncapital cases in Federal District Court does not occur upon the handing down of a verdict. Instead, after the verdict in a criminal case the defendant is entitled to have a pre-sentence report prepared prior to sentencing. That report is created by the Probation and Pretrial Services Divison of the District Court where the trial took place. During this process, both the prosecution and the defense have the opportunity to submit memoranda to the Court regarding sentencing that cannot be submitted until after the pre-sentence report has been completed. After this, there may also be an evidentiary hearing at which both sides would present witnesses supporting the arguments in their sentencing memoranda. At some point after the submission of all of these reports and a potential hearing, the presiding Judge would impose sentence. It would be at that point that Menendez would be considered “convicted” under Federal law, thus beginning the process of his removal from the Senate. This entire process could be quite lengthy, possibly as long as three to five months from the date a verdict is handed down. In the McDonnell case, for example, the former Virginia Governor was convicted in early September 2014 and not formally sentenced until January 2015, a period of four months. All of this could be delayed even further if Menendez appeals any verdict against him and his lawyers are successful in halting the sentencing process until after his appeal has been ruled upon.

As noted, the current estimate is that Menedez’s trial is expected to last at least a month, and perhaps as long as six weeks. This would mean that we probably won’t see a verdict until sometime near the end of October. Even if Menendez’s sentencing were to come in three months his Senate seat would likely remain in Democratic hands until at least mid-January when the new Governor takes office. It’s possible, of course, that we could see a vacancy before then. Theoretically at least, Menendez could choose to resign if there is a guilty verdict against him, for example. Given his protestations of innocence, though, and the likelihood of a Republican replacing him if he were to leave before January 16th, that seems unlikely. Additionally, Senate Republicans could seek to accelerate the dismissal procedure by proceeding with the process to dismiss him immediately upon the handing down of a verdict, although that process would likely take at least as long as the sentencing process so it’s not clear that this effort would be successful. Additionally, any such ethics proceeding would require a two-thirds vote in the Senate for removal even in the case of a conviction.

All of this assumes that Menendez is found guilty, of course, and that is by no means certain. The precedent created by the Supreme Court’s ruling in the McDonnell case could end up saving Menendez in the end, for example, or the jury could find him not guilty. Despite that, though, it’s likely that Republicans and Democrats alike will be following this trial closely.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Bob The Arqubusier says:

    Additional fun fact: Melgen has already been convicted of 67 charges of Medicare fraud, the investigation of which Menendez is accused of trying to obstruct.

    So that part of the case against Menendez is simplified. The guy giving Menendez all that money and all those gifts was breaking the law. And it’s also proven that Menendez was trying to protect Melgen from that investigation.

    It also appears that in its original version of the story, the New York Times somehow neglected to mention Menendez’ party affiliation, only adding “Mr. Menendez, a Democrat,” after their curious omission was noted.

    Like or Dislike: Thumb up 0 Thumb down 2

  2. Facebones says:

    “Many of us have a personal concern about Bob Menendez,” said Robert G. Torricelli, a former Democratic senator of New Jersey.

    Wow, talk about the pot calling the kettle black. If Torch thinks you’re crooked…

    Seriously though, what is it with NJ and crooked politicians? Menendez looks seriously guilty, I can only hope he can stick it out till January so a Democrat can replace him before he goes off to prison.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. Just 'nutha ig'nint cracker says:

    @Bob The Arqubusier: Yawn. Come back when you’re willing to address GOP Senators and highway rest stops, too. (Among other things.)

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Bob The Arqubusier says:

    @Facebones: Menendez looks seriously guilty, I can only hope he can stick it out till January so a Democrat can replace him before he goes off to prison.

    What’s that old saying again? “Justice delayed is… politically advantageous?”

    How about “my party right or wrong?”

    It says something, though, when you acknowledge he’s almost certainly guilty, but want to keep him in office to wring maximum political gain out of him. That he’s preferable to anyone on the other side of the aisle.

    Like or Dislike: Thumb up 0 Thumb down 2

  5. Bob The Arqubusier says:

    @Just ‘nutha ig’nint cracker: (click)

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  6. wr says:

    But I thought that the brilliant legal mind of John Roberts ruled that politicians taking campaign donations and then acting in favor of the donor is in no way evidence of corruption, and was merely proof that people gave money to politicians who shared their views and interests. If Menendez is guiltly, then Citizens United is completely wrong? And how can that be, since Roberts is merely an umpire calling balls and strikes?

    Like or Dislike: Thumb up 3 Thumb down 0

  7. Slugger says:

    As I understand it, the cost of a senatorial campaign in 2016 averaged a bit more than $19 million. This large amount of money surely invites subterfuge, log-rolling, and outright quid pro quo corruption. We need to rethink the structure of our elections. I have no knowledge relevant to Mr. Menedez, and I hope that justice is served in his trial. However, the large amounts of money involved in getting a job paying less than $200,000 per year creates an opportunity for lots of mischief. Since we don’t have any angels running for office, we need a climate that will encourage respectable behavior by ordinary citizens. I favor limiting campaigns to a few weeks with lots of publically underwritten electronic exposures which should be very doable in our age of social media.

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  8. Just 'nutha ig'nint cracker says:

    Somebody here doesn’t seem to care much for being trolled. Hmmmm…

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  9. Mister Bluster says:

    …publically underwritten electronic exposures…

    I do not want one cent of the Federal Taxes that I pay to support any campaign to elect or re-elect a Republican candidate to any office.

    …limiting campaigns to a few weeks…

    This would require a law that would be passed in the United States Congress* and signed by the President.
    It would help if you could post up a draft of this legislation so we could all see how it would work.

    *That includes both the United States Senate and the United States House of Representatives Jenos, where ever you are.

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  10. Mister Bluster says:

    …publically underwritten electronic exposures…

    I do not want one cent of the Federal Taxes that I pay to support any campaign to elect or re-elect a Republican candidate to any office.

    …limiting campaigns to a few weeks…

    This would require a law that would be passed in the United States Congress* and signed by the President.
    It would help if you could post up a draft of this legislation so we could all see how it would work.

    *That includes both the United States Senate and the United States House of Representatives Jenos, where ever you are.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. An Interested Party says:

    So…certain people want unlimited cash in political elections but then are shocked when politicians do everything they can to get that cash…why, you’d think this case would serve as an example of how we really need campaign finance reform, right, all you “money is speech” folks? Meanwhile, it would be so appropriate for Republicans to use this extra seat to get rid of the ACA…after all, some of them are already showing how cruel they can be by ending DACA…why not continue to be vicious to an even larger group of people…

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  12. Mister Bluster says:

    …publically underwritten electronic exposures…

    I do not want one cent of the Federal Taxes that I pay to support any campaign to elect or re-elect a Republican candidate to any office.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. @wr:

    It wasn’t just Roberts, the ruling in the McDonnell case was unanimous.

    Like or Dislike: Thumb up 1 Thumb down 0