Menendez's Trouble May Not Be Over With Jury’s Verdict

Senate Ethics Committee could launch preliminary investigation into New Jersey Democrat

Sen. Robert Menendez is not out of the woods yet. (Tom Williams/CQ Roll Call)

Like an Acela Express train bolting from New Jersey to Washington D.C., attention may soon shift from a courtroom in the Garden State to a Senate panel that in most years flies largely under the radar.

Jury deliberations in the trial of Sen. Robert Menendez have begun, but even an acquittal may not be the end of the saga for the New Jersey Democrat. Whether or not the Senate Ethics Committee will pursue any disciplinary action on the matter remains an open question.

The panel is likely already weighing whether to begin an initial investigation into the matter given the large amount of witness testimony and evidence already available in the trial record, legal experts say.

And the committee would not be precluded from acting even if the jury finds Menendez — who is facing 17 counts of bribery and other charges — not guilty of using his official position as a U.S. senator to benefit his friend, a Florida eye doctor.

“The Senate Ethics Committee will conduct its own review. I think they are compelled to,” Robert Walker, an attorney at law firm Wiley Rein and former chief counsel and staff director at the Senate ethics panel, said in a recent interview. “These are allegations and charges that are at the heart of the committee’s jurisdiction.”

Sen. Johnny Isakson of Georgia, the committee’s chairman, declined to comment, citing Senate rules that prevent the panel from discussing pending or potentially pending investigations.

For Menendez, an investigation by his peers could end up being more damaging to his future in the Senate.

The bar for the ethics panel to impose or recommend disciplinary action is lower than that for criminal cases. In order to establish that improper activity occurred, the Ethics Committee only requires “substantial credible evidence that provides substantial cause.”

Much of the initial work done by the committee is typically conducted behind the scenes. But Walker expects the panel will have to take the rare step of publicly acknowledging whether they are launching a preliminary inquiry, given the highly public nature of the trial.

Should the panel launch its own review of Menendez’s alleged wrongdoings, most of the initial investigation will be private and experts say it will likely include simply reviewing material already public in the trial record.

Inquiries do not typically reach the public stage until a letter of admonition is issued, thereby closing the investigation, or an adjudicatory review — which involves outside counsel — is launched.

“That would be very far down the road,” Walker said. “If it goes that far, that would be a public proceeding. There would be I’m sure a huge amount of wrangling and fighting on what the process would be.”

The final report from the Ethics panel could include recommendations for disciplinary sanctions, a rare occurrence in the Senate’s history. For several possible outcomes, including expulsion from the chamber, the full Senate would need to vote to support the suggested actions from the committee.

The most recent major incident the committee publicly investigated involved an affair former Sen. John Ensign had with the wife of his chief of staff. Ensign, a Republican from Nevada, resigned before the panel issued a final report.

Some have also highlighted similarities between the Menendez case and a prior one involving New Jersey Democratic Sen. Harrison Williams, who in 1981 was found guilty of bribery charges stemming from the Abscam scandal and continued to serve in the Senate for several months. He ultimately resigned his seat while the Senate debated expelling him. 

But Walker believes if the Menendez case follows a similar trajectory, the battle could be much uglier this time around.

“A member who is charged and facing expulsion in this day-and-age as opposed to 30 years ago — and regardless of party — will fight a hell of a lot harder and more publicly,” he said. “It’s just the way that political disciplinary matters I think have evolved.”

Recent activity from the ethics panel has been largely private. The committee in 2016, for example, received 63 alleged violations, according to an annual report issued by the committee. Of those, five underwent a preliminary inquiry and zero resulted in disciplinary action.

Outside ethics groups have called for the Senate Ethics Committee to restructure itself to work in concert with an entity like the the House Office of Congressional Ethics — an office whose power House Republicans attempted to weaken earlier this year.

The OCE independently reviews potential violations and provides recommendations to the House Ethics Committee on whether further investigations is necessary. Reports, regardless of the outcome, are always made public.

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