The Supreme Court has dashed Robert Menendez’ last hope to prevent the first trial of a sitting US Senator for corruption since Ted Stevens in 2008 (which was posthumously vacated). The top court refused to take the appeal of a Third District appellate ruling that refused to overturn Menendez’ April 2015 indictment on the basis of constitutional privilege under the Speech or Debate Clause. That leaves the door open to a trial in the fall, just as the three-term incumbent ramps up an expected re-election campaign in the midterms:
The Supreme Court has rejected Sen. Bob Menendez’s attempt to throw out the bribery and corruption charges against him, setting the stage for a trial for the New Jersey Democrat this fall.
With Monday’s announcement, Menendez can no longer block the proceedings against him from moving forward, a major setback for his efforts to avoid criminal trial.
The appellate court ruled that the benefits granted by Menendez to Salomon Melgen were too specific to him for a claim of privilege, Reuters recalls:
Prosecutors allege Menendez accepted campaign donations and gifts, including a stay at a Caribbean villa and private jet flights, from Melgen in exchange for interceding in various matters on his friend’s behalf, including an $8.9 million Medicare billing dispute. Menendez and Melgen have pleaded not guilty to the charges they faced in the 22-count indictment. …
Last July, the 3rd U.S. Circuit Court of Appeals in Philadelphia ruled that Menendez’s actions amounted to “essentially lobbying on behalf of a particular party,” and thus outside the “safe harbor” provided in the Constitution.
Menendez’ attorneys have argued that his actions amount to nothing more substantial than normal constituent services, but not too many constituents get senatorial help in clearing a seven-figure dispute with Medicare, especially as a provider. That claim will have to get adjudicated by a jury now, as it didn’t impress judges at any level as a reason to throw out the indictment. Besides, Obama administration officials Kathleen Sebelius and Marilyn Tavenner have indicated (according to Politico’s story today) that Menendez summoned them for a private meeting about Melgen’s case after having taken the donations and gifts. That may not be a smoking gun, but clearly the Supreme Court thinks a jury should make the decision whether it amounts to bribery and corruption.
Trials of sitting members of the Senate are rare. Stevens’ now-discredited indictment was the most recent, but John Ensign resigned in 2012 after taking a plea deal for his own corruption case. Another New Jersey Democrat Harrison Williams, was the last member convicted while in the upper chamber for corruption in a 1981 trial resulting from the Abscam case that also convicted six House members (five Democrats and one Republican). Williams had refused to resign during the trial, and only did so the next year ahead of an expulsion vote. (Williams maintained his innocence to the end of his life in 2001, having petitioned unsuccessfully to get a pardon from Bill Clinton.)
Will Menendez follow the same path? A resignation would allow Republican governor Chris Christie to appoint his successor and could give the temporary incumbent a leg up in the 2018 election. That would allow a tiny bit more breathing room on issues like ObamaCare repeal and replacement, but would hardly be a major loss for Democrats. They might have more trouble in an already-fraught midterm by campaigning during a trial highlighting an allegedly corrupt Democrat, much the same way that Republican House scandals doomed the GOP in an already-fraught 2006 midterm. Democrats might be better off with Menendez out of the way, which would allow other Democrats in New Jersey to shift a more positive focus on themselves for a primary without a damaged incumbent clogging the path to a hold.
Menendez may not resign ahead of his trial, but it’s a safe bet that his colleagues will not mind a bit if he does.