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Menendez trial offers high stakes

August 18, 2017 02:31 pm

When Sen. Robert Menendez, D-N.J., goes on trial on federal corruption charges in three weeks, far more than his own fate hinges on the outcome.

If Menendez is convicted and then expelled from the U.S. Senate by early January, his replacement would be picked by Gov. Chris Christie, the Republican governor of New Jersey and an ally of President Donald Trump.

That scenario — where Menendez’s interim replacement would more than likely be a Republican — would have immediate and far-reaching implications: The Republicans would be gifted a crucial extra vote just as the party remains a single senator shy of repealing President Barack Obama’s signature health care law.

Those potential consequences only heighten the drama around the first federal bribery charges leveled against a sitting senator in a generation.

“This one vote, this one vote — if he’s convicted or does a plea deal — could change the course of history on Obamacare. It’s remarkable,” said Steve Lonegan, a New Jersey Republican who unsuccessfully ran for Senate three years ago.

He added, “That’s a big ‘if.’”

It’s enough to have Democrats anxious. “Many of us have a personal concern about Bob Menendez,” said Robert G. Torricelli, a former Democratic senator of New Jersey. “But there’s also an overriding concern about the Republicans strengthening their control in the Senate and, in the near term, being able to repeal Obamacare and 16 million people losing their health care.”

Menendez stands accused of using his position to advance the interests of Dr. Salomon Melgen, a friend and political patron, in exchange for luxury vacations and hundreds of thousands of dollars of campaign support.

Menendez has repeatedly declared his innocence — “This is not how my career will end,” he said when the indictment was handed down — and vowed to win acquittal and then re-election in 2018.

The New Jersey senator raised more than $2 million for his campaign in the first six months of 2017.

Even a bribery conviction would not automatically force Menendez from office, under the Senate rules. He would either have to voluntarily resign his seat, or two-thirds of his Senate colleagues — meaning 15 Democrats — would have to vote to expel him.

Democrats largely have met Menendez’s upcoming trial with silence, happy to let the daily torrent of Trump administration news overshadow it, refusing to speculate about the senator’s future even as some, most notably Torricelli, have begun to position themselves should Menendez step aside or be convicted.

But as the trial nears, Menendez’s uncertain fate has been the subject of growing consternation and conjecture, from the courthouse in Newark, New Jersey, to the corridors of the U.S. Capitol, especially after Melgen, an ophthalmologist, was convicted this spring in a separate case of defrauding Medicare of nearly $100 million.

The jury found Melgen, 63, guilty of all 67 counts. He faces spending much of the rest of his life in prison, which could add pressure to cooperate with prosecutors, although there is no evidence that has happened. Melgen and Menendez are co-defendants, and a person familiar with Melgen’s legal strategy said there are no circumstances under which he would testify against the senator.

Patricia Enright, a spokeswoman for Menendez, said it would not matter even if he did: “There is nothing that Melgen could provide the government that would help them or bolster their case.”

There is also no evidence any plea discussions have occurred for Menendez. “There has never been a conversation between the Justice Department and Sen. Menendez and his team about anything other than a trial,” said a person familiar with Menendez’s legal strategy.

Jury selection will begin Tuesday, nearly 2 1/2 years after he was indicted, with opening statements slated for Sept. 6. The trial is expected to last between one to two months.

Under New Jersey law, if Menendez does exit the Senate before his term is complete, the governor would appoint a temporary replacement who would serve until the 2018 election. For now, that would give the appointment to Christie, who could appoint anyone — even himself.

Christie, a former federal prosecutor, has refused to address the topic.

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“I’m not going to answer questions about a vacancy in the United States Senate, which presumes the finding of guilt by a jury, before anyone has even heard one stitch of evidence,” he said earlier this summer. “It’s not appropriate. I won’t engage in it.”

Adding to the intrigue: Christie’s term ends in January, and a Democrat, Philip D. Murphy, is the heavy favorite to succeed him. Some Democrats are already discussing running out the clock to block a GOP appointment.

“I don’t think Menendez has to run out and resign if he’s convicted,” said Brad Woodhouse, a political strategist and former spokesman for the Democratic National Committee, calling that a “knee-jerk reaction.”

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The campaign arm of the Senate Democrats declined any comment on Menendez, his upcoming trial or what would happen should he be convicted.

Republicans, however, said they were readying to attack if Senate Democrats execute such a delay. “We’re going to make it hurt as much as we can if these guys waver on expelling him, if convicted,” said Bob Salera, a spokesman for the National Republican Senatorial Committee.

One significant development in Menendez’s favor is the Supreme Court decision last year to throw out a corruption conviction against former Virginia governor Bob McDonnell. The ruling narrowed the grounds on which prosecutors can convict politicians of selling favors.

Abbe Lowell, Menendez’s lawyer, said in July that the McDonnell decision “fundamentally changed the legal landscape since the senator’s original indictment,” but the judge has rejected attempts to stop or delay the trial. Lowell is one of the nation’s most prominent trial lawyers; among his other clients is Jared Kushner, the senior White House adviser and president’s son-in-law.

Some Democrats said they were on edge about Menendez, worrying about everything from the delayed sentencing of Melgen until after Menendez’s trial to the pace of fundraising for the senator’s legal defense.

Menendez raised a little more than $10,000 in the first six months of the year, compared to more than $2.6 million in 2015 and more than $1 million in 2016.

Michael Soliman, a political adviser to Menendez, said the senator focused on raising money for his re-election instead because “he had raised enough in his legal defense fund to cover his legal bills.” Re-election cash must be raised in smaller increments, he said, “You can’t do it overnight.”

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Soliman said Menendez plans to run for re-election “regardless of what comes out at trial.”

Prosecutors have alleged the senator pushed a port security deal on Melgen’s behalf, to change a Medicare policy that would have benefited him and that he helped get visas for Melgen’s college-aged girlfriends, who were models in Brazil, Ukraine and the Dominican Republic.

“If you’re going to go up against him,” Soliman said, “get ready for the toughest political campaign of your life.”