Why Bob McDonnell Won’t Save Bob Menendez

U.S. Senator Robert Menendez is facing trial this fall on corruption charges. His lawyers will claim the Supreme Court’s recent decision in the Bob McDonnell case means the charges against Menendez cannot stand. But the effect of the McDonnell case on the Bob Menendez trial is likely to be pretty limited.

New Jersey Democrat Menendez and his co-defendant Dr. Salomon Melgen were indicted in April 2015. (You can find my detailed analysis of the indictment here.) The case has been on hold for two years while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trial court and the U.S. Court of Appeals for the Third Circuit rejected those arguments. The Supreme Court recently declined to hear his appeal, finally clearing the way for the case to go to trial.

But while Menendez was pursing his Speech or Debate appeals, the U.S. Supreme Court decided McDonnell v. United States. The Court reversed the convictions of the former governor of Virginia, holding that McDonnell did not perform “official acts” as defined by federal bribery law.

Senator Menendez and his lawyers are hoping that McDonnell will breathe new life into his own defense. They will argue that Senator Menendez, like Governor McDonnell, did not agree to perform any official acts. But for Menendez that’s going to be an uphill battle.

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

The Menendez/Melgen indictment describes a long-term bribery scheme. It charges that Melgen repeatedly provided Menendez with valuable gifts including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to campaigns and legal defense funds. In exchange, Menendez allegedly interceded on Melgen’s behalf in several different government disputes. The government also alleges Menendez took steps to conceal these facts, including failing to report any of Melgen’s gifts.

The actions Menendez allegedly took on Melgen’s behalf fall into three general categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel to help three different foreign girlfriends of Melgen obtain visas to come to the United States.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the Dominican Republic to provide x-ray screening of cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes. Menendez and his staff contacted different State Department officials, urging them to pressure the Dominican government to implement the contract. At one point Menendez met with an Assistant Secretary of State and said he was unsatisfied with the way State was handling the matter. Menendez allegedly threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly using an eye medication designed for a single patient to treat two or three people. He would then bill Medicare as if he had purchased a separate vial for each patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling.

Menendez and his staff worked for several years to help Melgen resolve this dispute. Menendez personally met with the Secretary of Health and Human Services and with the acting director of the Center for Medicare and Medicaid Services to advocate on Melgen’s behalf.

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme. Update: On April 28, 2017, Melgen was convicted on dozens of counts of fraud in the Florida case.)

What will be the effect of the McDonnell case on the Bob Menendez trial?

Former Virginia Governor Bob McDonnell

The McDonnell Decision

A jury convicted former Virginia Governor Robert McDonnell and his wife Maureen of multiple counts of corruption in September 2014. The McDonnells accepted more than $170,000 in gifts and undocumented “loans” from businessman Jonnie Williams. In return, prosecutors charged, the McDonnells agreed to promote Anatabloc, a dietary supplement made by Williams’s company, within the Virginia government.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld the convictions. But in June 2016 the U.S. Supreme Court unanimously reversed, holding that the steps taken by McDonnell on Williams’s behalf did not constitute “official acts” under federal bribery law. (You can find my more detailed analysis and critique of the Court’s opinion here.)

The Court based its decision on the language of the federal bribery statute, 18 U.S.C. § 201. That statute defines bribery, in part, as a public official accepting something of value in exchange for agreeing to be influenced in the performance of any “official act.” It further defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . . ”

The evidence had shown that McDonnell made phone calls on Williams’s behalf, arranged meetings for Williams with other Virginia government officials, and hosted a product launch event for Anatabloc at the Governor’s mansion. The Court held that these actions, standing alone, did not amount to “official acts” and could not support a bribery conviction.

The Court broke its analysis down into two steps, focusing on the precise language of the official act definition. First, one must identify the relevant “question, matter, cause, suit, proceeding or controversy” to which the alleged bribe relates. This language, the Court held, connotes a “formal exercise of government power, such as a lawsuit, hearing, or administrative determination.” It suggests something that is “relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and checked off as complete.”

Second, the Court said, the public official must agree to take a “decision or action” “on” the relevant matter, suit or controversy. This requires that the official take some steps to address or decide the matter, or to influence or advise others to do so. In particular, the requirement that the decision or action be “on” the matter – and not merely “about” or “related to” the matter – suggests the official is working to resolve it somehow.

The Court concluded that McDonnell’s actions did not amount to official acts under this analysis. There were several Anatabloc-related issues that could constitute a “question, matter, cause, suit, proceeding, or controversy.” But simply making phone calls or arranging meetings did not amount to “decisions or actions on” any of those questions. McDonnell introduced Williams to various officials and extended other political courtesies related to Anatabloc. But McDonnell did not himself take steps to resolve any of the matters or pressure others to do so. Accordingly, the Court concluded, a bribery conviction based on McDonnell’s actions could not stand.

Did Senator Menendez Perform “Official Acts?”

Even before McDonnell was decided, Senator Menendez had filed motions arguing he had not performed any official acts. The trial court denied those motions back in 2015. Now, in the wake of McDonnell, Menendez will undoubtedly renew those arguments.

If we follow the Supreme Court’s two-step approach from McDonnell, it’s pretty easy to define the relevant “question, matter, cause, suit, proceeding or controversy” for each aspect of Menendez’s case:

1) Should the State Department grant a visa to allow this individual to enter the United States?

2) Should the U.S. government work to persuade the Dominican government to implement the port security contract?

3) Should HHS modify its rules concerning the dosing of a particular eye medication? Or, more specifically, should the Department pursue its claims against Dr. Melgen about alleged overdosing?

Each of these is a circumscribed issue, a question that could be put on an agenda and checked off as resolved. They are the type of specific administrative or policy matters that McDonnell requires.

Menendez will argue that he, like McDonnell, did not take any “decisions or actions on” the defined matters. But Menendez’s actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or introduce him to other officials. The Senator himself attended various meetings and otherwise advocated for Melgen’s interests. Unlike McDonnell, Menendez was actively engaged in trying to influence the outcome of the matters in question.

An official act must also involve a matter that is “pending, or which may by law be brought before any public official . . . . ” Menendez will also argue that the identified matters were never pending before him and that he did not have the power to decide them. As a result, he will claim, his advocacy on these matters cannot amount to official acts by him.

But the Supreme Court in McDonnell squarely addressed this question. The Court held that a “decision or action” may include influencing another public official who has the power to decide: “decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.’”

In other words, the official act does not have to be one the defendant himself has the power to resolve. It is sufficient if the defendant attempts to pressure, persuade, or advise another public official to perform an official act.

In the Menendez case the relevant matters were pending before various Executive Branch officials. Their resolution of those questions would constitute official acts. The indictment alleges that Senator Menendez attempted to pressure or persuade those officials to resolve the matters in Melgen’s favor. McDonnell makes it clear that such efforts can be official acts by Menendez,.

Heads I Win, Tails You Lose

Menendez has put himself in a bit of a box with the legal arguments he has already pursued. He argued all the way to the U.S. Supreme Court that the actions he took on Melgen’s behalf were part of his official duties as a U.S. Senator and should therefore be shielded by the Speech or Debate Clause. Courts rejected those arguments because the Speech or Debate Clause shields only legislative activities. Lobbying Executive Branch officials is not protected.

Now Menendez will be arguing that those same actions were so unconnected to his position as a Senator that they could not be official acts. As the government has pointed out, Menendez effectively has argued that nothing a U.S. Senator does can be prosecuted as bribery: if it’s not a legislative act shielded by the Speech or Debate clause, then it’s not an official act and can’t support a bribery conviction. Heads I win, tails you lose.

For example, in their original motion to dismiss based on failure to allege official acts, filed on July 20, 2015, his lawyers argued: “With respect to a U.S. Senator, invoking oversight authority and a threatened use of official powers would be an official act, but it also would be immunized by the Speech or Debate Clause.” (p. 6 fn. 4). But the courts have now rejected the latter half of that claim.

With respect to the Medicare dispute and the port contract issue, the government is indeed alleging that Menendez threatened to hold hearings and otherwise to invoke his oversight authority. Having conceded that these would amount to official acts, it will be a challenge now for the defense to claim otherwise without developing whiplash.

Effect of the McDonnell case on the Bob Menendez trial

As with all criminal trials, the Menendez case is going to come down to the government’s evidence. Menendez may claim that in his interactions with Executive Branch officials he was merely seeking information. He may argue he was not advocating for Melgen or trying to influence those officials. If that turns out to be true, it may be a defense. Merely attending a meeting to gather information would probably not fit the Supreme Court’s definition of official act.

But the government is alleging much more. It intends to prove that Menendez was vigorously advocating on Melgen’s behalf, trying to persuade or pressure Executive Branch officials to decide questions in Melgen’s favor. Such actions would fall squarely within McDonnell and would qualify as official acts by Menendez.

McDonnell’s primary effect will be on the jury instructions. Menendez’s lawyers will not get the case dismissed prior to trial based on the official act issue. Even in McDonnell the Supreme Court did not say it was impossible for any jury to find McDonnell guilty. The problem was that the jury was not properly instructed about the definition of official acts.

The McDonnell case will therefore shape the Menendez jury instructions concerning what the government must prove about official acts. The defense will argue the government has not met its burden. But if it proves the allegations in the indictment, the government should have no trouble meeting the McDonnell standard.

Every public corruption defendant for the foreseeable future is going to seek salvation in the McDonnell opinion. Menendez may have some other viable defenses, including his claim that there was no quid pro quo and that Melgen’s gifts were based simply on friendship. But the McDonnell case and the definition of official act are unlikely to save him.

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Third Circuit Rejects Senator Menendez Speech or Debate Claims

Update 9/13/16: Today the Third Circuit denied Menendez’s request for a rehearing en banc.  He likely will now seek review by the Supreme Court.

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 Court of Appeals has rejected Sen. Menendez's Speech or Debate claims

Senator Bob Menendez

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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Welcome to New Jersey: The Gloves Come Off in the Senator Menendez Prosecution

Update 10/9/15: on Thursday Oct. 8 the judge denied the remaining motions to dismiss, including those based on the definition of “official acts.”  On Friday Oct. 9 the defense filed a notice that it is appealing the denial of the motions to dismiss to the Third Circuit.

Update 9/28/15: today the judge granted the defense motion to dismiss four of the bribery counts (two against each defendant) for failure to allege a sufficient quid pro quo.  A number of other motions, including the motions to dismiss based on the speech or debate clause and prosecutorial misconduct, were denied.  A few motions remain outstanding, including those based on the definition of “official acts.”

If anyone thought the courtroom confrontation between federal prosecutors and New Jersey Senator Bob Menendez was going to be some kind of decorous legal debate, that notion should be dispelled by the papers recently filed by both sides.  The case is shaping up as a clash that will have all the quiet gentility of a New Jersey mob war.

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Menendez and his co-defendant Salomon Melgen were indicted last April in New Jersey federal court on multiple counts of bribery and related charges. (You can find my discussion of the indictment here.) The indictment alleges that over a number of years Menendez used the powers of his office to benefit Melgen, and in exchange Melgen gave Menendez a series of valuable gifts and contributions. These included multiple trips on Melgen’s private jet, repeated stays at a luxury villa in the Dominican Republic, a vacation in Paris, and large donations to various campaign funds and a legal defense fund that would benefit Menendez.

The actions Menendez allegedly took for Melgen in return fall into three categories: 1) Menendez worked to help three different girlfriends of Melgen obtain visas to come to the United States; 2) Menendez intervened with State Department officials seeking to have them pressure the Dominican government to move forward on a multi-million dollar contract Melgen held to provide cargo screening services at Dominican ports; and 3) Menendez met with HHS officials and otherwise sought to intervene on Melgen’s behalf in a dispute in which Medicare was seeking to recover millions of dollars in alleged overbillings from Melgen. (That dispute also led to Melgen being indicted for Medicare fraud in a separate case in Florida, shortly after Menendez and Melgen were indicted in the New Jersey case.)

The defense filed its first round of motions on July 20. It was a legal carpet-bombing: a total of fifteen different motions, totaling about 400 pages, with eleven different lawyers appear on the pleadings. But apart from the sheer volume of paper, what’s most notable is the nature of many of the arguments.

The Godfather famously remarked, “It’s not personal, it’s strictly business” – but the defense here has made it personal. The defense lawyers do not merely challenge the legal sufficiency of the charges (although they do plenty of that); they attack the integrity and motives of the prosecutors themselves. Several of the motions are devoted to claims that prosecutors and investigators engaged in deliberate misconduct in order to secure the indictment.

Among the allegations: that prosecutors deliberately misled the grand jury on legal issues; provided false or misleading evidence to the grand jury; improperly brought out inflammatory evidence about various women involved with the defendants; improperly leaked confidential grand jury material; and that prosecutors and investigators badgered, misled, and otherwise mistreated witnesses, including the Senator’s family and staff.

This level of personal attacks on the prosecutors is unusual, but it may be an unfortunate and inevitable legacy of the botched prosecution of former Alaska Senator Ted Stevens. In the wake of that debacle, defense attorneys likely feel they have a better chance of obtaining a sympathetic judicial ear when they allege prosecutorial misconduct in a high-profile corruption case — regardless of whether the allegations have any merit.

Prosecutors hit back hard on August 24. They managed to slay not quite as many trees, requiring only seven consolidated responses to the fifteen defense motions and about 2/3 the number of pages. And they made a number of misconduct allegations of their own: prosecutors claim the defense pleadings contain misleading excerpts of testimony, incomplete quotations, and other mischaracterizations of the facts. It all adds up, the prosecutors argue, to a pattern of deception that could not be simply inadvertent.

On the papers it seems to me that the government has the better of virtually every legal argument. A few highlights:

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Speech or Debate

As expected, a linchpin of Menendez’s arguments is that his actions are shielded by the Constitution’s Speech or Debate clause. As I discussed in this earlier post, the Speech or Debate clause, where it applies, provides Members of Congress with absolute immunity from being prosecuted for their legislative activities. But the clause does not apply to everything a Member does or everything that is part of his or her job; its coverage is limited to “legislative acts.”

Legislative acts include those actions that are integral to the actual process of introducing, debating, and passing legislation. As the Supreme Court has said, the issue is whether it is necessary to inquire into how the Member of Congress spoke, debated, or argued, or into anything else done on the floor or in committee. Acts that take place outside of the halls of Congress also may be protected, but only if they are integrally linked to the legislative process itself.

A legislator’s contacts with members of the Executive branch typically are not considered protected legislative acts. Predictably, Menendez has argued that this case is an exception.  He claims that his actions on the port contract and the Medicare dispute were not simply attempts to intercede on Melgen’s behalf but were in pursuit of a broader legislative policy. For example, he argues that when he met with State Department officials about the port contract he was actually working on the policy issue of ensuring adequate port security in countries that ship to the United States. Similarly, he claims that when he met with HHS officials about Melgen’s billing dispute he was really pursuing broader policy questions about HHS and Medicare reimbursement practices.

As the prosecutors point out, Menendez’s papers wield the word “policy” as though it were some kind of talisman, suggesting that if a Senator’s actions have anything to do with “policy” then they are protected by the Speech or Debate clause. But this is not the law: the Supreme Court decisions on Speech or Debate repeatedly use the term “legislative acts,” not “policy,” to define what is protected — and Menendez’s actions do not appear to be legislative acts.

It would be relatively easy for a corrupt Senator to come up with a “policy” argument concerning any actions taken in exchange for a bribe. For example, a Senator who took a bribe to pressure Pentagon officials to award a contract to a particular company could argue that he was simply working on defense “policy” or on Congressional oversight of defense spending. If this were the standard, it would effectively immunize virtually anything done by members of Congress, allowing them to accept bribes with impunity.

In addition to arguing that the defense has the wrong legal test, the prosecutors also point to a significant amount of evidence – including e-mails, witness statements, and other documents – demonstrating that, as a factual matter, the purpose behind Menendez’s actions was pretty clearly to help out Melgen, not to fulfill some broader legislative or oversight role.

That a Senator can come up after the fact with a “policy” that is somehow related to his actions does not transform those actions into protected legislative acts. Menendez’s attempts to shield his efforts on Melgen’s behalf are unlikely to derail the prosecution. But because issues concerning the Speech or Debate clause may be appealed immediately, regardless of what happens before the trial judge the fight over these questions could easily delay the trial for a year or more.

(As an aside, Menendez does agree that one category of his efforts on Melgen’s behalf – the work to obtain visas for Melgen’s girlfriends — was “pure casework” and thus not protected by the Speech or Debate clause. All of that activity, however, took place outside the statute of limitations, so there is little downside for Menendez in this concession. If he succeeded in having everything about the port contract and Medicare dispute thrown out of the case, he likely could argue that what remained of the prosecution was time-barred and also should be dismissed.)

“Official Acts”

Another key aspect of Menendez’s defense is the claim that any actions he took on Melgen’s behalf were not “official acts” within the meaning of the federal bribery laws. This is a popular defense argument in public corruption cases these days; it’s the centerpiece of the defense in the prosecution involving former Virginia Governor Bob McDonnell and his wife Maureen. (You can find my analyses of the “official act” issue in the McDonnell case here and here. McDonnell will soon be asking the Supreme Court to review his conviction, based largely on this question of whether he performed “official acts.”)

The prosecutors have some fun with Menendez’s claim in their Speech or Debate response. Menendez, they note, has argued that nothing he did was an “official act” within the meaning of the bribery laws. But the Speech or Debate clause protects only those actions integral to the job of a legislator, which would seem by definition to be official acts. By arguing that his efforts on Melgen’s behalf were not “official acts,” therefore, Menendez has essentially conceded that they are not protected by Speech or Debate. He can’t have it both ways.

But in any event, the law is pretty clear that interceding with the Executive branch can be an “official act” subject to the bribery laws. Again, if this were not the case, legislators would be free to accept bribes with impunity in exchange for pressuring Executive branch agencies on behalf of the bribe payor.

As the prosecutors point out, Menendez’s arguments boil down to this: everything a Member of Congress does either: 1) is a legislative act shielded by the Speech or Debate clause; or 2) is not an “official act” and so cannot be charged under the bribery laws. This “heads I win, tails you lose” approach would, as prosecutors put it, provide a “blueprint for immunizing criminal activity on Capitol Hill.”  These claims are unlikely to prevail.

The Prostitution Allegations

Another aspect of the defense pleadings may end up backfiring. One of their arguments is that the entire prosecution is tainted because the case began after allegations surfaced that Menendez and Melgen had procured the services of underage prostitutes in the Dominican Republic.  Menendez argues that these allegations came from political opponents or possibly the Cuban government, and that they are so inflammatory that they fatally tarnish the entire prosecution. The defense also claims that prosecutors asked improper and prejudicial questions in the grand jury about Melgen and Menendez’s girlfriends and other women seen with them.

Although the allegations about underage prostitutes were indeed what initially led prosecutors to look at Melgen and Menendez, those allegations do not form any part of the indictment. But by raising them again in an attempt to make Menendez appear to be a victim, the defense has brought those inflammatory charges back into the case and made them relevant. The prosecutors were forced to respond in order to defend themselves against the allegations of misconduct. Accordingly, in their papers they point out the seriousness of the allegations, that they had a duty to investigate them, and that in fact those allegations “were not so easily disprovable and had some corroboration.”

There’s really no legal basis to dismiss an otherwise valid indictment based on concerns about how the investigation first began. As New Jersey columnist Paul Mulshine has pointed out, by attempting to paint himself as a victim Menendez likely has succeeded only in bringing the allegations about underage prostitutes back into the public eye and lending them additional credence. Of course, having brought them back to light, Menendez will no doubt try to use those same allegations to claim later that an impartial trial jury cannot be found, if the case ever gets to that point.

Prosecutorial Misconduct

As noted above, the defense claims of prosecutorial and investigator misconduct are many and varied. Some of the charges of “misconduct” are a little hard to take seriously. For example, the defense protests that agents interviewed Menendez’s ex-wife while she was still in her pajamas. In response, prosecutors point out that the agents showed up and knocked on her door at the very reasonable hour of 9 a.m. on a Wednesday, and they can hardly be blamed for the fact that she was indeed still in her pajamas at that hour.

The defense also professes outrage that agents interviewed Menendez’s seventy-year old sister, underlining her age in their pleading as though to suggest it is by definition abusive to interview someone so old and frail. Given the age of many United States Senators, one has to wonder what Menendez’s colleagues would think of this claim.

The prosecutors appear to have solid responses to all of Menendez’s arguments about misconduct.  The claims appear to be based on mischaracterizations of the investigation and evidence or misstatements of the law. The defense would like the public and the judge to think this is another Ted Stevens case, but the allegations of misconduct in this case are not likely to go anywhere.

I’m still expecting the government to make Melgen an offer he can’t refuse in exchange for rolling over on Menendez. In the meantime, the motions hearing is set for September 17. There should be plenty of fireworks.

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Senator Menendez and the Speech or Debate Clause

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Update: On 9/28/15, the judge denied Menendez’s motions to dismiss the indictment based on the speech or debate clause.  Menendez is expected to appeal that ruling to the U.S. Court of Appeals for the Third Circuit.

Update 2: The Third Circuit denied Menendez’s appeal on July 29, 2016. On December 12, 2016, he filed a petition for certiorari asking the Supreme Court to review his speech or debate claims.

Update 3: The Supreme Court declined to take Menendez’s appeal on March 20, 2017. The case will now go back to the district court to proceed towards trial.

United States Senator Robert Menendez of New Jersey and his co-defendant Salomon Melgen were indicted last April on multiple counts of corruption. The indictment describes a bribery scheme: over a number of years, Melgen is alleged to have provided Menendez with numerous valuable gifts, including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to various campaigns and a legal defense fund. In exchange, Menendez is alleged to have taken various official actions to benefit Melgen. (For a detailed analysis of the indictment, see my earlier post here.)

Since the charges were announced, some have wondered whether the Constitution’s speech or debate clause might shield Menendez’s conduct or provide him with a defense. The speech or debate clause is almost inevitably raised in any case involving a member of Congress, and has already been the subject of some preliminary skirmishing in the case. In the end, though, it seems unlikely to be much help to Menendez.

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The Speech or Debate Clause: Protection for “Legislative Acts”

The speech or debate clause, Article I, Sec. 6, Cl. 1 of the Constitution, provides that “for any Speech or Debate in either house, [Senators and Representatives] shall not be questioned in any other Place.” The clause has a long and distinguished legal history. It was based on a similar provision in the English Bill of Rights of 1689, passed in response to the Crown’s nasty habit of arresting members of Parliament for sedition when they made speeches the king didn’t like. The framers considered the clause a key part of the system of checks and balances, because it protects members of the legislative branch from harassment or intimidation by the executive or by a hostile judiciary.

The Supreme Court has made it clear over the years that the protections of the clause extend not only to actual speeches and debates on Capitol Hill but to all “legislative acts” or acts within the “legislative sphere.” Legislative acts include things such as voting, actions taken in committee, preparing committee reports, talking to other Members concerning bills, and other activities directly related to the passage of legislation.

At the same time, it’s clear that the Clause does not bar inquiry into the actions of a member of Congress simply because those actions might be related in some way to his or her official duties. Nor does it provide Members of Congress with immunity from prosecution for official corruption. As long as the government can prove its case without reference to legislative acts, the speech or debate clause presents no bar.

A leading Supreme Court case interpreting the clause involved Alaska Senator Mike Gravel, who in 1971 convened a Senate subcommittee hearing at which he read extensively from the Pentagon Papers and placed the entire 47 volumes into the Congressional Record. He later arranged for private publication of the papers. A grand jury investigating possible criminal conduct in connection with the release of the papers subpoenaed an aide to Gravel to question him about these events, and Gravel moved to quash the subpoena.

The Court first held it was undeniable that Gravel himself could not be questioned about or punished for his behavior in the Senate. That was core speech or debate conduct. The Court also held that the protections of the clause must extend to legislative aides, if their conduct would have been a protected legislative act if performed by the Member himself. Accordingly, Gravel’s aide likewise could not be questioned in the grand jury about events that took place on the Senate floor.

The arrangement for private publication of the papers, however, was another matter. The Court noted that the speech or debate clause does not cover everything done by a Member of Congress, and the mere fact that things were done in an official capacity does not make them protected “legislative acts:”

The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

As a result, the Court concluded, the grand jury was free to inquire into areas such as how Gravel received the papers in the first place, as well as his arrangements for private publication. Even though he did these things in his capacity as a Senator, they were not legislative acts protected by the clause.

In a companion case to Gravel, United States v. Brewster, the Court stated that evidence will be barred only if it becomes “necessary to inquire into how [the defendant] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.” Activities need not take place inside the Capitol to be protected however; other actions directly related to the legislative process, such as preparing reports or conducting investigations related to legislation, are also covered.

On the other hand, acts such as performing constituent services, writing newsletters, meeting with Executive branch agencies, and giving speeches outside of Congress, although part of a Member’s job, are not protected by the speech or debate clause. These activities are considered political in nature and not related to the core legislative duties of debating and enacting legislation.

Members of Congress under investigation often argue that virtually all of their activities have some role to play in the legislative process and should be protected, but courts generally reject such claims. If that were the standard, Members of Congress would end up virtually immune from prosecution for corruption or any other job-related misconduct. As the Supreme Court noted in Brewster, the Clause “does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions.”

The key in any speech or debate case, therefore, is to determine whether proof of the charges will require any inquiry into protected legislative acts. Evidence concerning legislative acts will be prohibited, even if that ends up meaning the defendant may not be prosecuted at all. But if the government can prove its case without evidence of or inquiry into legislative acts, the case may proceed.

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Speech or Debate in the Menendez Case

On the face of the indictment, the actions alleged to have been taken by Menendez and his staff do not appear to be legislative acts that would be protected by the speech or debate clause. The actions fall into three main categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel on Melgen’s behalf, in order to help three different girlfriends of Melgen — one from Brazil, one from Ukraine, and one from the Dominican Republic — obtain visas to come to the United States. These efforts consisted of e-mails, phone calls and letters from Menendez and his staff in support of the visa applications.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the government of the Dominican Republic to provide x-ray screening of all cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes and work had not begun. Beginning in 2012, Menendez and his staff began contacting State Department officials to urge them to pressure the Dominican government to implement the contract. At one point Menendez allegedly met with an Assistant Secretary of State to discuss the issue, told him he was unsatisfied with the way State was handling it, and threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly taking an eye medication that came in a vial designed for a single patient and using it to treat two or three patients. He would then bill Medicare as if he had purchased a separate vial for each individual patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling. Melgen was recently indicted in a separate Medicare fraud case in Florida, based in part on this same overbilling scheme.

Menendez and his staff worked for several years to try to help Melgen resolve his dispute with Medicare. This included Menendez himself meeting with Health and Human Services Secretary Kathleen Sebelius and with Marilyn Tavenner, the acting director for the Center for Medicare and Medicaid Services.

There doesn’t seem to be much here that would raise a speech or debate clause issue. All of the actions described involve Menendez or his staff interacting with various executive branch agencies concerning matters that do not appear directly related to legislation. The Supreme Court has consistently considered such contacts with the executive branch to be political, rather than legislative, and not protected by the clause.

Menendez’s best hope will be to try to convince the court that his actions on behalf of Melgen were actually related to some broader, legislative policy issue that he was investigating. For example, some reports have suggested that Menendez will argue his meeting with Sebelius and other actions in the Medicare dispute were related to his work on the Senate Finance Committee, which oversees Medicare’s finances. In addition, the indictment notes that Menendez threatened to hold a hearing concerning the port contract dispute, and Menendez may try to argue that any steps he took concerning that contract were part of his investigation related to the potential hearing and Congressional oversight of the matter.

We caught a glimpse during the grand jury investigation of the type of arguments Menendez likely will make. Apparently two of Menendez’s aides refused to testify in the grand jury about certain actions they or Menendez took in the Medicare and port contract disputes, citing the speech or debate clause. The district court ruled that the privilege did not apply and that the aides must testify.

On appeal, however, the Third Circuit sent the issue back to the trial court for further fact-finding concerning whether any of Menendez’s actions were related to his legislative activities. (This information was revealed when the Third Circuit’s order, which should have been under seal because it related to a grand jury investigation, was inadvertently made public for a period of time.) Apparently the government decided it could live without the evidence at the grand jury stage, and proceeded to indict the case without it rather than continue the fight.

Establishing that his contacts with different executive branch officials on Melgen’s behalf were “legislative acts” seems like an uphill battle for Menendez. On the Medicare issue, for example, the indictment is full of references to staff memos and e-mails referring to Melgen’s Medicare problem and the “Melgen case.” The correspondence is all about Melgen’s particular dispute, not about any broader policy issues or proposed legislation. The paper trail may not support any after-the-fact attempts to argue that Menendez’s efforts were really about legislation, not about helping out his benefactor.

Defense motions in the case are currently due on July 20, and we will know more about Menendez’s arguments then. Unlike most issues in a criminal trial, the burden of proving that the speech or debate clause applies falls on Menendez, not on the government. But even if he doesn’t prevail, Menendez can tie things up for quite a while. Orders concerning the application of the speech or debate clause may be appealed immediately, before trial. It’s clear from the pleadings already filed that both sides, as well as the judge, are anticipating such pre-trial appeals.

If Menendez loses on speech or debate before the trial judge his appeals could easily delay the trial, currently set for October 13, for a year or more. If the government loses on speech or debate, it will have to decide whether the evidence that ends up being excluded is so critical to the case that it needs to appeal, or whether it can proceed without it, as it apparently did in the grand jury.

The bottom line is that the speech or debate clause seems unlikely to derail the Menendez prosecution in the end.  But fights over the clause may well delay the trial well into 2016 or beyond, while Menendez, whose current term runs through 2018, continues to represent the Garden State in the United States Senate.

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