Supreme Court declines to hear Senator’s appeal

Senator Robert Menendez will have to face his corruption charges after the Supreme Court declined to hear his appeal.

The Supreme Court of the United States declined to hear an appeal by Senator Robert Menendez, meaning that he will have to face pending charges against him in federal court.   Since he was indicted, Menendez has claimed he was wrongfully indicted, and was constitutionally protected from going to trial on bribery and other charges.

Senator Robert Menendez, a senator from New Jersey, has been involved in politics for almost three decades.  He started in the New Jersey General Assembly, and went on to the State Senate.  In 1993, he was elected to the United States House of Representatives for New Jersey’s 13th district.  He served in the House until 2006, when he was elected to the U.S. Senate.  As part of his senatorial duties, he has previously been Chair of the Foreign Relations Committee, and has been a member of the Banking and Finance Committees.

Menendez allegedly accepted thousands of dollars of campaign contributions and gifts…

In April 2015, Senator Bob Menendez was indicted on 22 charges, including federal corruption charges, in United States District Court.  Menendez is charged with violating 18 U.S.C. 201 (b), which governs Bribery of Public Officials.  If there is any value in exchange for influencing an official act, one is in violation of the statute.  The statute begins by saying “directly or indirectly,” implying that things of value do not have to go directly to the public official.  To violate 18 U.S.C. 201, one only has to offer things of value or influence, they do not actually have to follow through.   Menendez is also being charged under 18 U.S.C. 1341, which punishes schemes to defraud in various ways, including monetary.  18 U.S.C. 1346 clarifies by stating that scheme or defraud can include defrauding another of the intangible right on honest services.  This definition is what Menendez is charged with violating.  If convicted under 18 U.S.C. 201, Menendez could face anywhere from 3-15 years in prison, and fines of up to twenty thousand dollars.  Under 18 U.S.C. 1341, Menendez could face 3-20 years in prison, and up to 250 thousand dollars in fines.

According to the indictment, Menendez allegedly accepted thousands of dollars of campaign contributions and gifts from Dr. Salomon Melgen.  Melgen, an ophthalmologist from Florida, is a friend and longtime financial supporter of Menendez.  Menendez is accused of taking money as a bribe in exchange for using his official position to benefit Melgen.  Menendez is accused of receiving almost one million dollars in campaign contributions and gifts, including vacation homes and use of a private jet.  All of this is said to have occurred from 2007 to 2012, and went unreported by Menendez.   In exchange for the gifts and monetary contributions, it is alleged that Menendez intervened on Melgen’s behalf in a multimillion-dollar billing dispute with the Centers for Medicare & Medicaid Services, as well as obtained visa applications for several of Melgen’s foreign girlfriends.  Melgen was suspected by CMS of overbilling Medicare by using fewer drugs than he was being reimbursed for, and it is believed Senator Menendez tried to influence the situation.

Menendez immediately moved for a dismissal, arguing that under the Speech or Debate Clause of the U.S. Constitution, he could not be charged with improperly aiding Melgen.  The United Sates District Court denied his motion, which he appealed.  Menendez asked the U.S. Court of Appeals for the Third Circuit to overrule a lower court, which had let the Justice Department’s case against him move forward.  The Third Circuit affirmed the ruling of the lower court.

The Speech or Debate Clause provides that “for any Speech or Debate in either House” Members of Congress “shall not be questioned in any other Place.”  This clause was intended to protect the integrity of the legislative process.  The Speech or Debate Clause has been broadly interpreted, so that if legislators are ”acting in the sphere of legitimate legislative activity,” they are protected from civil and criminal liability, as well as protected against what evidence may be used.   The main controversy surrounding the Speech or Debate Clause concerns the scope of the phrase “legislative acts.”  Legislative acts have “consistently been defined as those generally done in Congress in relation to the business before it.” They do not include “all things in any way related to the legislative process.”  The clause does not protect every act performed by a member of Congress.  It is meant to protect them in their political dealings, but not where they are personally benefited.

The Third Circuit held that since Senator Menendez was working on behalf of a particular party (Melgen), that he was not covered under the “constitutional safe harbor.”  According to the Court, “no clearly wrong findings exist at this stage, and we will affirm the Court’s conclusion that the Speech or Debate Clause does not protect any of the challenged acts.”

By declining to hear the case, the Supreme Court let stand the ruling that went against Menendez…

Following the Third Circuit’s ruling, Menendez appealed to the Supreme Court, who declined to hear his case.  By declining to hear the case, the Supreme Court let stand the ruling that went against Menendez, and leaves in place the evidence prosecutors have used to allege that the senator improperly used his title as Senator to help Melgen.  Menendez’ hope was to achieve the dismissal he has been denied if the Supreme Court reversed the lower court decision.

While the ruling leaves Menendez facing the charges in his indictment, it does leave open the possibility that he may try to defend himself at trial using many of the same arguments presented to the appeals court.  The judges said in their opinion that Menendez is free to argue that the actions the Justice Department alleges he took on behalf of Melgen, were in fact genuine expressions of legislative interest in the policies of the executive branch, rather than mere favors for a generous donor and loyal political supporter.

With the charges pending against the Senator, there have been talks of how this will affect his political future.  Former New Jersey Senator Robert Torricelli has expressed some interest in taking over the seat if Menendez steps down before his term expires in January 2019.  Advisors of Menendez stated, “Senator Menendez has the support of the Democratic Party in New Jersey…and they look forward to him finally having his day in court and putting this behind him.”  Most Republicans, including New Jersey Governor Chris Christie, have been silent on the issue.  Senator Menendez’s official website is also silent on the issue.

If convicted, Menendez could be faced with the pressure to resign from office.  He could also potentially lose re-election, even though his poll numbers seem to have recovered in the two years that have passed since his indictment.  New Jersey citizens have been loyal to Menendez over the years, but a conviction could change that.  Now that he has exhausted his initial appeals, Senator Menendez is expected to head to trial in September of this year.

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About Katelyn Heath, Ethics Editor Emeritus (20 Articles)
Katelyn Heath is a 2017 graduate of Campbell Law School and served as the Ethics Editor for the Campbell Law Observer during the 2016-2017 academic year. She is from Salisbury, North Carolina and graduated from UNC-Charlotte with a Bachelor of Arts in History and Criminal Justice in 2014. Following her first year of law school she attended Baylor Law Schools Academy of the Advocate in Scotland. She is also currently working for Marshall and Taylor PLLC, a local family law firm.
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