Senator Menendez Loses Bid to Toss Corruption IndictmentBy
U.S. appeals court says Menendez donor actions not protected
Indictment accuses him of taking campaign donations, travel
U.S. Senator Robert Menendez lost a bid to dismiss his corruption indictment on the grounds that his actions on behalf of a campaign donor were protected by the U.S. Constitution, removing another hurdle to his criminal trial in the fall.
A three-judge appellate panel rejected arguments by Menendez, a New Jersey Democrat, that his 2015 indictment should be rejected because the Constitution’s Speech or Debate Clause protects him from prosecution for legislative acts. Menendez will ask the full appeals court in Philadelphia, and perhaps the U.S. Supreme Court, to hear the case, his lawyer said.
"Today’s ruling by the Third Circuit Court of Appeals is just another step in
the legal process that, at the end of the day, will show that Senator Menendez has always acted in accordance with the law,” said his attorney, Abbe Lowell, in a statement. “Once all the facts are heard, the senator remains confident that he will be vindicated.”
Lowell said that the Supreme Court’s decision in June to set aside former Virginia Governor Bob McDonnell’s bribery conviction “raises equally important issues” in the Menendez case that “will now have to be addressed.”
The Justice Department argued that Menendez didn’t deserve immunity for his actions on behalf of Salomon Melgen, a Florida eye doctor who sought his help in several disputes with the U.S. government. An indictment last year charged that Menendez corruptly took almost $1 million in campaign donations, luxury travel and other gifts from Melgen for intervening on his behalf. Both men have pleaded not guilty.
The question of whether Menendez deserved constitutional immunity turned on whether five specific actions for Melgen were “inherently legislative," as the senator claimed, the appellate panel ruled. While Menendez’s informal efforts were “ambiguously legislative in nature,” U.S. District Judge William Walls correctly analyzed that meetings and emails showed his actions were “essentially lobbying on behalf of a particular party.”
“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 appellate panel wrote. “It was not to engage in true legislative oversight or otherwise influence broad matters of policy.”
Walls had said last year he would set a trial for this fall in federal court in Newark, New Jersey, depending on the outcome of the appellate court ruling.
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.
Prosecutors said Menendez 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. 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.
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.
The case is U.S. v. Menendez, 15-cr-00155, U.S. District Court, District of New Jersey (Newark) and 15-3459, U.S. Third Circuit Court of Appeals (Philadelphia).