Mimesis Law
22 January 2017

Senator Menendez Argues The Speech And Debate Clause

December 16, 2016 (Fault Lines) – Bob Menendez is a New Jersey Senator—for now. Last April, he was indicted on 22 federal crimes. Like Governor McDonnell, Menendez was accused of using his office to benefit a friend, Dr. Melgen. Although Melgen was an ophthalmologist, it seems that he had a particular affinity for looking into the eyes of young, foreign ladies.

Melgen helped his girlfriends with more than eye exams. In the case of a Brazilian model, he helped fund her graduate degree in Miami and asked Menendez to help get her a student visa. The second girlfriend was a Dominican citizen, who wanted to travel to the U.S., with her sister, to visit Melgen. Initially, her visa was rejected, but after Menendez put pressure on the embassy, and she got the visa. The third girlfriend was a Ukrainian model who needed to travel to the U.S. for plastic surgery, for whom Menendez advocated too. In all three cases, Menendez met the girlfriend at some point.

Melgen was an appreciative sort of friend; he paid for Menendez to go on seven trips. In one case, Melgen spent 650,000 AmEx points so Menendez could hook up with a girlfriend at a luxury hotel in Paris. The absent-minded Senator forgot to disclose this on his ethics forms. When it was discovered, he called it an ‘oversight’ and returned $58,000 to Melgen for the plane trips. He’s just like a normal person; we all quickly forget $58,000 worth of gifts.

It doesn’t stop there. Melgen was a huge, as in yuuuge, supporter of Menendez. When Menendez was running for re-election, Melgen and his family donated $750,000 to support Menendez. While these weren’t all direct donations to Menendez’s personal campaign account, the donations were earmarked in such a way as to be sure to get to him.

At this point, you might be thinking almost a million dollars in contributions and gifts from your friend to help with three visas might be a little generous. Melgen was in a dispute with the federal government over almost $9 million of alleged CMS over-billings. Melgen was not shy to ask his friend and U.S. Senator, Menendez, to intervene. And Menendez intervened multiple times, including appealing to the Secretary of Health and Human Services personally.

It’s all a little sketchy, but the timing of events makes the whole thing reek. Melgen made a $300,000 donation for Menendez. Then six days later Menendez met with top federal officials to help Melgen. A couple months later, Melgen dropped another $300,000 after Menendez’s staff emailed him an update about the billing dispute. A few months after that, Menendez involved himself in a matter regarding ports that could have negatively impacted Melgen’s interests.

Not terribly surprising that Menendez ended up indicted. But being convicted of federal corruption charges would greatly interfere with Menendez’s Senate career. So, he moved to dismiss the indictment based on venue, separation of powers, and the Speech and Debate clause.

Unlike state and executive branch officials, members of Congress enjoy a special immunity—the Speech and Debate clause. In a nutshell, the foundational principal can be traced back to the early days of Parliament, when the Crown would prosecute members for their votes and political activities. Menendez claims that it protects him to run interference on a bill dispute, port security, and visas for a good friend, who happens to give him buckets of money.

Menendez was not the first person jammed up to make such a claim. So, the District Court examined the body of case law on the clause. Basically, non-legislative acts, even if official and related to legislative acts are not covered by the clause. Typically, if the conduct charged arises from a legislative act, then the courts will dismiss the charges. On the other hand, as the District Court pointed out, the clause does not protect members of Congress from bribery charges. Accordingly, the District Court determined that none of the actions arose from legislative acts and thus the prosecution could go forward.

Menendez then appealed to the Third District. It, too, had little trouble finding no immunity:

In sum, evidence is plentiful that to most of those involved the focal point of the meetings with Executive Branch officials was Dr. Melgen. That Senator Menendez framed those meetings using the language of policy does not entitle them unvaryingly to Speech or Debate protection. Rather, for every mention of policy concerns there is substantial record support for the District Court’s findings that those concerns were instead attempts to help Dr. Melgen. * * *

In sum, the materials before us provide a sufficient basis for the District Court’s conclusion that the predominant purpose of the challenged acts was to pursue a political resolution to Dr. Melgen’s disputes and not todiscuss broader issues of policy, vet a presidential nominee, or engage in informal information gathering for legislation. It was not to engage in true legislative oversight or otherwise influence broad matters of policy. 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.

Now, Menendez’s only hope is that the Supreme Court will grant cert, reverse, and dismiss the indictment. He argues that there is no evidence of an explicit quid pro quo—just unfortunate timing. He argues that while the visas were not legislative acts, having meetings about the ports and Melgen’s billings were sufficiently grounded in his duties to be legislative. Further, he argues that the clause is intended to protect his motives for taking legislative action, and that he shouldn’t have to explain his intent. This, he contends, creates a circuit split:

The foregoing authorities demonstrate that if Senator Menendez had been charged anywhere outside the Third Circuit, the court would have looked no further than the substance of his acts to assess their legislative nature objectively. Refusing to exercise the self-restraint the Speech or Debate Clause demands, however, the Third Circuit ran headlong into the Clause’s “third rail” by inquiring extensively into the potential “motive” and “purpose” underlying his alleged conduct. This Court should grant certiorari to resolve the obvious conflict.

The Third Circuit’s illogic stands in even starker relief when viewed in light of this Court’s official immunity jurisprudence more generally. This Court has long stated that courts adjudicating claims of official immunity must not be permitted to inquire into the alleged mindset or motives of officials charged with misconduct, precisely because “substantial costs attend the litigation of the subjective good faith of government officials,” costs whose many harmful effects include “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Harlow, 457 U.S. at 816. And when legislative immunity is at issue, the costs of a crippled immunity regime include compromised “legislative independence” as well.

That’s a nifty idea. The legislator can claim whatever questionable act was actually legislative, so as to invoke protection of the clause. Then the government isn’t allowed to question to the motive of acts not facially legislative, such as scheduling a meeting with a cabinet official to talk about your friend’s billing problem. Because bribery and fraud does not happen on the floor of Congress, this approach would make prosecuting bribery increasingly difficult.

Rather, the Third Circuit held that when it is neither clearly legislative or clearly non-legislative, such as having meetings with executive branch officials, then the extrinsic evidence such as the content of the meetings and whom they benefitted was relevant. It’s a prudent way to try to untangle the grey area. The government’s argument was that none of the Senator’s attempts to influence the executive branch should ever be entitled to immunity. The Third Circuit’s approach represents a middle way.

No doubt that legislators ought to be free of executive branch harassment and politically motivated charging. But when elected officials do many favors for a donor who gives extremely large amounts of cash, then it is prudent for the FBI to investigate for possible bribery. After the McDonnell case, this case might not factually support a conviction, but this sort of conduct should not get an absolute pass from scrutiny.

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