Measuring the scope of Congress’ ability to shield its work from prosecutors, Department of Justice lawyers and attorneys representing Sen. Robert Menendez seem to agree on only one point: The New Jersey Democrat’s assistance securing tourist and student visas for Dr. Salomon Melgen’s young, foreign girlfriends falls into the unprotected category.
But the two sides are feuding over protections granted under the Constitution’s Speech or Debate Clause as they relate to nearly every other allegation of bribery in the 14-count indictment. In one of six briefs filed Monday in the pending corruption case, the DOJ claimed Menendez’s broad interpretation of the privilege “is a blueprint for immunizing criminal activity on Capitol Hill.” His reading would render members of Congress "'super-citizens, immune from criminal responsibility’ and above the laws they pass, accountable only to each other," the DOJ stated.
Prosecutors say the charging document is replete with examples of Menendez using the power of his Senate office to influence executive branch officials on behalf of his longtime friend and political supporter. It lays out the senator’s attempt to intervene on behalf of Melgen’s $8.9 million Medicare billing dispute with officials from the Department of Health and Human Services and the Centers for Medicare and Medicaid Services.
Menedez's legal team argues prosecutors have "failed to grasp the policy issues at stake." The investigation, it stated, wrongly concluded that a series of meetings and communications from 2009 to 2012 — about billing policies on certain medications that Melgen used at his Florida eye clinic — fell beyond the Menedez's oversight responsibilities as a member of the Senate Finance Committee.
"[T]he mere fact that it was Dr. Melgen who called the Senator’s attention to the issue, or the fact that Dr. Melgen could benefit from a prospective change in policy, does not render the activity case work," Menendez's lawyers stated in an attempt to persuade the judge to dismiss the charges . Only legislative work is protected under the clause. "It is not uncommon for legislators to learn of problems from particular individuals, and seek broader policy changes that would benefit that individual and others," they stated.
That matter will go before a New Jersey federal judge on Sept. 17, in the latest challenge to congressional immunity from prosecution.
In June, the Supreme Court struck the latest blow to the Speech or Debate Clause when it declined to hear former Rep. Rick Renzi's latest appeal of fraud, racketeering and public corruption convictions. House lawyers warned that a previous ruling would have a chilling effect on members of Congress, potentially decimating the independence of the legislative branch.
Menedez's lawyers have also argued the privilege should be read broadly to protect the senator's efforts to improve port security in the Dominican Republic, after Melgen became the chief investor in a company holding a related shipping contract. They say the incidental benefit to Melgen, who made more than $750,000 in campaign donations, does not change the legislative nature of the issue.
"The Speech or Debate Clause is not a legal technicality; it is not a gift to Congress; and it is not a side door exit for misbehaving legislators," Menendez's lawyers stated in one court motion, putting the clause on equal footing with the executive privilege.
But prosecutors claim Menendez is using "legislative buzzwords" in an effort to rewrite history, envisioning the Senate as an exclusive, powerful club that is subject to its own rules.
Menendez has come under fire for failing to disclose luxury gifts, such as vacations and private jet rides from Melgen. His lawyers have advanced the theory that the Senate has exclusive jurisdiction to discipline its members for improper financial reporting.
However, from DOJ's point of view, lax oversight from the Senate Ethics Committee is not a loophole to escape prosecution under federal anti-corruption laws. Prosecutors stated that "civil enforcement—or nonenforcement—of an administrative rule" does not preclude criminal prosecution.
The judge will have to sort out what constitutes protected "legislative acts," versus unprotected activities, including political activity.
Menendez has set the record straight on one allegation related to doing Melgen's bidding with the State Department. He helped four women obtain visas — one was Melgen's girlfriend from Brazil, who wanted to attend the University of Miami; another matter involved 18- and 22-year-old sisters seeking to visit Florida; and a Ukranian woman with romantic ties to Melgen who needed a tourist visa — a matter his lawyers acknowledged was "pure case work."
See photos, follies, HOH Hits and Misses and more at Roll Call's new video site. Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.