Update 12/12/16: Today Menendez filed a petition for certiorari asking the Supreme Court to review his speech or debate claims.
Update 3/20/17: Today the Supreme Court declined to hear Menendez’s appeal. The case will now go back to the trial court to proceed towards trial.
The U.S. Court of Appeals for the Third Circuit today rejected claims by New Jersey Senator Robert Menendez that the charges against him should be dismissed based on the speech or debate clause of the Constitution. Menendez and his co-defendant, Dr. Salomon Melgen, were indicted in April 2015 on multiple counts of corruption. The 22-count indictment charges that between 2006 and 2013 Menendez accepted numerous valuable gifts from Melgen, including multiple trips on a private jet, vacations at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to various campaign and legal defense funds. In exchange, Menendez is alleged to have intervened on Melgen’s behalf in disputes with the Executive Branch, including an enforcement action by the Centers for Medicare and Medicaid Services based on alleged massive overbilling by Melgen’s opthalmology practice and a dispute with the U.S. Customs and Border Patrol over Melgen’s multi-million dollar contract to provide cargo screening services in Dominican ports. (For an analysis of the indictment and the charges, see my earlier post here.)
Menendez claims that various actions he took on behalf of Melgen, including meeting with Executive Branch officials to lobby on Melgen’s behalf, were “legislative acts” protected by the speech or debate clause and thus cannot be the basis of a criminal case. The trial court rejected those claims and Menendez appealed to the Third Circuit, where a three-judge panel has now unanimously rejected them as well. (For a more detailed discussion of the speech or debate clause and Menendez’s arguments, see my post here.)
The Third Circuit found that the evidence at this stage supports the government’s claim that Menendez was acting specifically on behalf of Melgen and was not, as he had argued, pursuing more general legislative or policy goals: “Record evidence and unrebutted allegations in the Indictment cause us to conclude that the District Court did not clearly err when it found that the challenged acts were informal attempts to influence the Executive Branch toward a political resolution of Dr. Melgen’s disputes and not primarily concerned with broader issues of policy.” (p. 29) Although there was some evidence in the record supporting Menendez’s claims, the court found he had made selective use of the facts while ignoring other evidence that cut against him: “Senator Menendez’s selective reading of the materials in the record does not persuade us that the District Court clearly erred . . . .” (p. 36)
Two important points: this was merely a pretrial determination, where allegations of the indictment were presumed to be true and Menendez had the burden of proof. As the Court of Appeals recognized, after all of the evidence comes out at trial it is possible that Menendez will ultimately prevail on his speech or debate arguments (although it seems unlikely). In addition, this appeal dealt only with the speech or debate claims and a couple of collateral issues; Menendez may still raise many other legal defenses both before and during trial. In particular, it remains to be seen whether the Supreme Court’s recent decision reversing the corruption conviction of former Virginia Governor Bob McDonnell will end up helping Menendez as well.
The Third Circuit’s decision was not a surprise; the speech or debate arguments always seemed like a long shot. The claims will, however, continue to delay the ultimate resolution of the case. Menendez will now likely ask the entire Third Circuit to review the panel decision en banc, and if that fails will petition the Supreme Court to hear the case. Even if those appeals are ultimately unsuccessful, it looks like his trial likely will be delayed well into 2017. Sidebars will keep you posted.
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