Former Senate Majority Leader Harry Reid, right and former Senate Foreign Relations Committee Chairman Sen. Robert Menendez, D-N.J., left, in happier times, November of 2014. (AP Photo/Carolyn Kaster)
The Obama Justice Department has filed its much anticipated corruption indictment against Senator Robert Menendez. He is the New Jersey Democrat who, from his powerful senior seat on the Senate’s Foreign Relations Committee, has vehemently opposed President Obama’s negotiations with the jihadist regime in Iran, as well as his outreach to Castro’s Cuba.
Two things about the Obama administration cannot be denied. First, the president is desperate to cut a deal with the mullahs on their nuclear program, so much so that he has erased virtually every red line he ever purported to draw and has not been shy about strong-arming naysayers, including our allies in Israel and France.
Second, the Obama’s Justice Department, which features the first attorney general in American history to be held in contempt of Congress (for obstructing the House’s investigation of the outrageous Fast & Furious scandal), is the most politicized in American history – practicing discriminatory law-enforcement that stays its hand against friends (see, e.g., its treatment of New Black Panther Party voter intimidation, Solyndra fraud, and the Obama 2008 campaign’s large-scale campaign finance violations) while punishing critics, scapegoats, and others who dare to cross the president (see, e.g., treatment of Dinesh D’Souza’s de minimis campaign finance violation; of Nakoula Basseley Nakoula, producer of the anti-Muslim video the administration fraudulently blamed for the Benghazi massacre; and of Standard & Poor’s, squeezed for a $1.37 billion settlement in a retaliatory suit Justice filed after S&P downgraded the U.S. credit-rating).
Consequently, as discussed here at Ordered Liberty last month when Menendez called an extraordinary press conference to defend himself, it was reasonable to suspect that the impending indictment might be payback for defying the president on Iran – indeed, mocking the White House over talking points that, the senator said, read as if they’d been written in Tehran.
As I hastened to point out in that post, this was not an “either-or” scenario. That is, it is entirely possible both (a) that the administration is harassing Menendez and making an example of the wages of defiance, and (b) that Menendez is in fact guilty of crimes. Discriminatory law enforcement is rarely a matter of trumping up cases. It is more a matter of exploiting the gray areas of prosecutorial discretion. Dinesh D’Souza, for example, was undeniably guilty of campaign finance violations. Nevertheless, the Justice Department typically allows these to be settled by administrative fine … as it did in the case of the Obama 2008 campaign’s offenses. D’Souza, to the contrary, was singled out for a multiple felony prosecution, with the Justice Department aggressively pushing for a significant prison sentence (denied by the judge), even though D’Souza’s $15,000 violation was a pittance compared to the Obama campaign’s concealment of nearly $2 million in donations.
So now that Menendez and his heavyweight donor, Florida opthalmologist Salomon Melgen, have been indicted on 22 corruption counts (comprised of conspiracy, bribery, fraud and false statements charges), it is worth asking: Is Menendez being unfairly singled out for prosecution on conduct in the nature of “everybody does it”? In considering this question, it is worth focusing on that paragon of Beltway rectitude, Harry Reid, who makes an intriguing cameo appearance in the Menendez indictment.
Boiled down to its essence, the 68-page indictment charges Menendez with agreeing to accept “things of value” (expensive gifts, vacations, private plane trips, and hundreds of thousands of dollars in contributions) from Dr. Melgen in return for being influenced to use his powerful office for Melgen’s benefit. The charging instrument describes an unusually lavish donor-pol arrangement. Still, the choreography of pay-to-play contributor and pampered elected official – with the chorus line of connected lobbyists and eager-to-please staffers in between – is hardly atypical of Washington … which is why so many Americans hold their government in such contempt.
It will not be easy for Menendez to convince a jury that the whole indictment is a criminalization of ordinary (if grimy) politics. As I noted in the aforementioned post, there is a meretricious air to some of the allegations about free trips with multiple “guests” to Melgen’s luxury resort. Of less prurient interest but probably more legal significance to the corruption charges, Menendez is also accused of lying about the gifts he was receiving on the annual financial disclosure form senators are required to complete. Specifically, it is said that in every year from 2007 through 2011 he failed to disclose thousands of dollars worth of gifts from Melgen. Here, we must note in the Justice Department’s favor that it could have charged Menendez with a separate felony (with a potential of five years’ imprisonment) for every year, but contented itself with a single five-year felony count. (See Indictment, Count 22, pp. 65-66.)
Primarily, though, the case against Menendez centers on three instances of something very familiar: an elected representative intervening with government agencies on behalf of a donor. To wit, the senator is accused of: (1) browbeating executive agencies to back Melgen in a conflict with the Dominican Republic over a contract to provide screening of containers coming through Dominican ports; (2) supporting visa applications for Melgen’s girlfriends; and (3) pressuring the Department of Health and Human Services (HHS) to resolve favorably to Melgen an $8.9 million Medicare billing dispute.
Bear in mind that there is nothing illegal per se about an elected representative’s petitioning government agencies on behalf of a constituent or supporter. Nor is there anything illegal per se about an elected representative’s acting in a manner that favors a donor. In fact, support for the representative’s agenda is usually the reason a donor contributes.
Illegality arises only if there is a quid pro quo – an understanding that the donor extends benefits and the representative accepts them to influence the latter to do the former’s bidding. This meeting of the minds can be very difficult to prove. Menendez thus argues, as one might expect, that he has a longstanding family friendship with Melgen; that it is this relationship, not Menendez’s political muscle, that explains Melgen’s largesse. The senator would have us believe that he did not do for Melgen anything he does not routinely do for the voters who sent him to Washington to look out for their interests. Note that this is why Menendez’s lies on financial disclosure forms, if proved, will be critical to the case: If there was nothing untoward about the gifts, there was no reason to conceal them. Proof of consciousness of guilt can be the difference in a case that comes down to the defendant’s state of mind.
With all that said, let’s focus on the third of the interventions described above – the Medicare billing allegation. As outlined in the indictment (pp. 35-52), Melgen dramatically overcharged Medicare for injections of Lucentis. Under Food and Drug Administration guidelines, each vial of Lucentis is “single-use” – one dose for one eye of one patient – even though it contains “overfill” in case of spillage. Melgen, however, divided the contents of each vial into multiple doses, then billed Medicare as if each dose administered were a full vial. When Medicare caught on to the scheme and analyzed Melgen’s records for 2007 through 2008, it found overbillings to the tune of $8.9 million. For three years, Menendez made herculean efforts to weigh in with HHS on Melgen’s behalf, parroting various rationales offered by the doctor and his lobbyists in defense of his billing practices. The efforts proved fruitless at each administrative level and in each appeal process.
According to the indictment, a frustrated Menendez turned for help to his friend and fellow Democrat, then-Senate Majority Leader Harry Reid of Nevada, in March of 2012. Using aides as intermediaries, Menendez kept Reid apprised of his futile pleas to and dissatisfaction with lower rungs of the HHS bureaucracy. Then, in July 2012, Reid personally interceded to arrange a meeting for Menendez with HHS’s then-Secretary Kathleen Sebelius. The indictment (at p. 49) explains that the meeting took place on August 2, 2012, and that Sebelius rebuffed Menendez.
Call me cynical, but it seems that while justice is blind, the Justice Department is anything but – it’s quite discriminating. For example, the indictment against Obama’s bête noir, Menendez, for corruptly pressuring HHS somehow manages to omit the teeny weeny detail that Reid, a key Obama ally, not only arranged the meeting with Sebelius but attended it – or, some might say, used his influence to pressure HHS.
Oh, but you’re thinking, there’s a difference: according to the indictment so carefully crafted by Obama’s Justice Department, Reid, unlike Menendez, was not bought and paid for by Melgen.
Really?
The indictment (beginning at p. 16) makes much of the fact that contemporaneous with the scheme to pressure HHS, Melgen made two contributions, totaling $600,000, for the benefit of Menendez’s reelection campaign. The donations were made to an entity called “Majority PAC.” But guess what the indictment doesn’t the tell you? Majority PAC was controlled by none other than … Harry Reid. It was run by former Reid staffers and the then-majority leader, far from concealing his intimate ties to it, wore them like a badge of honor.
With that in mind, let’s have a look at Melgen’s contributions: both the ones the indictment describes and the one that it conceals – ironically, much the way the Justice Department accuses Menendez of concealing Melgen’s largesse.
The indictment makes the Jesuitic assertion that Melgen’s $600K was “earmarked” for Menendez. Reid’s Majority PAC, however, was not a Menendez fund; it was, as the indictment notes in passing, “a Super PAC whose purpose was to protect and expand the Democratic majority in the U.S. Senate.” Regardless of how contributions were “earmarked,” the money could be channeled wherever Reid decided it needed to go to preserve his majority. (In this instance, Majority PAC did spend $582,000 on getting Menendez reelected.)
More saliently, Melgen did not contribute $600,000 to Majority PAC in 2012. He contributed $700,000.
The Justice Department charges (at p. 17) that, in 2012, a Melgen entity gave $300,000 to Majority PAC on June 1 and then “issued a second $300,000 check” on October 1. What they don’t tell you is that, in between, the same Melgen entity forked over another $100,000 to Majority PAC. Isn’t that interesting? The Justice Department, which takes pains (at pp. 9-13 of the indictment) to itemize, for example, a $356.80 steakhouse tab, an $890.70 plane ticket, and a $875.12 limo charge picked up by Melgen for Menendez, somehow decided it was not worth mentioning the additional $100,000 Melgen gave to the Reid-controlled super PAC.
And then there is the timing of this exorbitant donation: June 29, 2012. Under the sub-heading, “MENENDEZ Elevates His Advocacy on MELGEN’s Behalf to the Secretary of HHS” (p. 48), the indictment alleges that on July 10, 2012, Reid’s scheduler – not Menendez’s – “contacted HHS, stating that Senator 3 [i.e., Harry Reid, as he is described in the indictment] would like to have a meeting with the Secretary of HHS and Senator Menendez sometime in the next couple of weeks.” Subsequently, as noted above, the indictment describes the meeting at which Menendez browbeat Sebelius but elides mention of the fact that Reid was right there with him.
To summarize: if you just read what the Justice Department has chosen to include in its indictment, you would conclude that Menendez leaned heavily on Reid to get him a meeting with Sebelius (as if Menendez could not have gotten such a meeting on his own), and that Reid otherwise had nothing to do with the matter. But in reality, Melgen contributed $700,000 to a Reid-controlled super PAC, including $100,000, which was not “earmarked” for Menendez, just a few days before Reid, not Menendez, arranged the meeting with Sebelius – a meeting at which Reid accompanied Menendez knowing full well that the agenda was to plead on their deep-pocketed donor’s behalf.
If we are just considering the degree of unsavory conduct, the indictment unquestionably describes far more on Menendez’s part than on Reid’s. Furthermore, no one is accusing Reid of making false statements on disclosure forms, much less of the sort of salacious behavior Menendez is said to have engaged in with Melgen’s assistance. But if we consider instead the kind of unsavory conduct outlined in the corruption charges – i.e., if we try to deduce the Obama Justice Department’s legal theory about the sort of actions that constitute a felony violation of laws barring public officials from accepting “things of value” in exchange for using their political influence – it is difficult, to say the least, to distinguish what Menendez has been indicted for doing from what Reid has done with apparent impunity.
The real difference, it seems, is prosecutorial discretion: Menendez, who has made himself a nuisance to Obama, has been charged by Obama’s Justice Department; Reid, a stalwart Obama supporter, has not. Observe, though, that there is just enough information in the indictment to put Reid on notice that the hammer could come down on him at any moment if, like Menendez or Standard & Poor’s, he were to cross the president.
To say nothing of the not so subtle message to every Washington pol who takes donations and petitions government on behalf of his donors: Whether such conduct is deemed politics-as-usual or indictable crime may just depend on the president’s indulgence.
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