Ordered Liberty

It's Not 'Either…Or' with Menendez

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Sen. Robert Menendez speaks to reporters during a news conference, Friday, March 6, 2015, in Newark. A person familiar with a federal investigation of Menendez says the Justice Department is expected to bring criminal charges against the New Jersey Democrat in the coming weeks. (AP Photo/John Minchillo)

The speculation that Senator Robert Menendez (D-NJ) is about to be indicted on corruption charges is well informed enough that Menendez found it necessary on Friday to launch a preemptive self-defense in the media.

Sen. Menendez is suspected of influence peddling on behalf of Salomon Melgen, a Florida ophthalmologist and major donor Menendez describes as a longtime family friend. In 2012 alone, when Menendez was seeking reelection to the Senate, Melgen contributed $700,000 to his and other Democratic campaigns.

In addition, the Washington Post reports, sources claim Melgen has done Menendez various other favors, not least providing prostitutes (including minors) while Menendez stayed at a friend’s Dominican resort home, an allegation the senator vigorously denies. Beyond that salacious aspect of the case, the FBI is investigating whether money and other favors from Melgen induced Menendez to intervene on his behalf in at least two significant transactions: (a) pushing the the U.S. Customs and Border Protection agency to favor a Melgen-backed company in the acquisition of screening equipment for Dominican Republic ports; and (b) pressuring then-Health and Human Services Secretary Kathleen Sebelius and other top officials to resolve a Medicare billing dispute to Melgen’s advantage.

Menendez, a Clinton crony and a generally reliable progressive, has been an unusual Democrat in his vehement opposition to President Obama on two prominent foreign affairs matters: Iran and Cuba. At the moment, the Iran negotiations are of particular significance to the legacy-hunting Obama, who plainly sees cutting a deal on the mullahs’ nuclear program – no matter how rotten a deal – as a potentially defining achievement. Menendez, who has always enjoyed strong support among American Jews, has been scathing in criticizing Obama’s appeasement of the jihadist regime that publicly vows to annihilate Israel and is the world’s leading sponsor of anti-American terrorism.

So, as one would expect, Menendez sympathizers are claiming that the Obama administration’s apparently imminent prosecution of this prominent Democrat is strictly political intimidation: an attempt to criminalize politics-as-usual in order to silence and perhaps sideline a dissenter at a critical moment in the Iran negotiations. Administration sources counter that the investigation of a prominent Democrat shows that the administration is not partisan when it comes to law enforcement; the timing of the charges, they add, is driven not by political considerations but by the statute of limitations: apparently, one or more of the potential charges against the senator will be time-barred if the Justice Department does not indict them soon.

It is only natural that the competing camps should offer these divergent views. The case, however, is not an “either … or” situation. It is perfectly reasonable to believe both that Menendez may be guilty of corruption offenses and that his political opposition on Iran is factoring into the administration’s decision to charge him. Put another way, if Menendez were running interference for Obama on the Iran deal, rather than trying to scupper it, I believe he would not be charged.

Set the salacious allegations aside (because if they are provably true, Menendez is toast). Plainly, countless politicians cross ethical lines in the legally murky area of bribery and unlawful gratuity. Obama, a creature of Chicago politics who had shady dealings with convicted crook Tony Rezko, is no stranger to this phenomenon. So unsavory dealings between politicians and donors present classic cases of prosecutorial discretion: the Justice Department can often justify both proceeding with a case in the interest of rooting out corruption or deciding not to prosecute on the “everybody does it” theory of not criminalizing politics.

As he admitted, Dinesh D’Souza was guilty of a campaign finance violation. Nakoula Basseley Nakoula, the producer of Innocence of Muslims, the video the administration fraudulently blamed for the Benghazi Massacre, was technically guilty of violating the conditions of his “supervised release” (the federal version of parole). There was a viable legal avenue to prosecute these men because they had committed offenses. But the decision to prosecute them was transparently political. If D’Souza had been an Obama champion rather than a detractor, and if Nakoula had produced a video decrying the scourge of “Islamophobia,” they’d have been cheered and their indiscretions excused — just as the Obama Justice Department excused the illegal voter intimidation conduct of the New Black Panthers operatives, who, by contrast, would surely have been prosecuted if they had been Tea Party activists.

Here is the interesting thing about all this in Menendez’s case: The appalling politicization of the Justice Department over the last six-plus years makes his claim of a trumped-up prosecution plausible.

In Dinesh D’Souza’s case, he had no realistic opportunity to put the administration’s motives on trial because his campaign finance offense — making contributions through straw donors — was legally cut and dried, plus, he was clearly guilty of it. Appropriately, he tried (unsuccessfully) to get the court to throw the case out on selective prosecution grounds. That, however, is a legal claim for the judge to decide, not a claim of factual innocence played out before a jury.

In stark contrast, as the Post outlines today, the offenses Menendez is apparently going to be charged with are tough to prove. It is no surprise that politicians vote and act in a way that pleases donors — that’s usually why the latter are donors. And politicians legitimately see it as part of their job to go to bat for constituents and supporters who are seeking accommodations from government. When there is a longstanding friendship involved, especially one that may predate the politician’s time in public office or involve family ties, it becomes tough to prove a quid pro quo arrangement, or that the politician expected favors as a condition of using his office to benefit the donor.

When the government has a tough row to hoe, a defendant has much more leeway to present alternative and sinister theories to the jury about why the case was brought. And when the government’s case is perceived as weak or close, juries are more inclined to indulge an alternative or sinister theory — because the government has the high burden of proof and because convicting even guilty people is unpleasant, so jurors want to be sure.

We’ll see what happens if the government files charges and we then get a sense of how damning the allegations appear to be. For now, though, Sen. Menendez is vowing to fight, and he has retained very fine, highly experienced defense counsel for that purpose. Things could get very interesting.