The Senate Ethics Committee has “severely admonished” Robert Menendez, once again demonstrating its uselessness. Of course, the committee did not have the authority to put Menendez where he really belongs — in prison — but it could have recommended something of a little more consequence, like censure or expulsion.
Once again, the Senate has proven that it is the world’s most exclusive club, and membership has its privileges. The Ethics Committee — chaired by Senator Johnny Isakson (R-GA) and consisting of three members of each party — probably never wanted to render judgment on Menendez and probably never thought they would have to.
The Senate investigation began in late 2012 but was put on hold when the Justice Department initiated a criminal probe. It resumed late last year when the criminal trial in New Jersey resulted in a hung jury. The Justice Department first declared that it would retry Menendez and then, stunningly, announced that it would not. Menendez was off the hook, and certainly knew that he had nothing to fear from his Senate colleagues.
Of course, the Ethics Committee does not enforce criminal statutes, but it certainly could have placed Menendez’ Senate Rules violations in their proper context. His actions were part of a larger scheme whereby Dr. Salomon Melgen, a Florida eye doctor, ripped off Medicare and shared some of the loot with Menendez who then did his best to make sure authorities stayed away from Melgen.
In April 2017, Melgen was found guilty of defrauding Medicare out of tens of millions in a trial in Florida. A few months later, Menendez and Melgen stood trial together in New Jersey on bribery charges. The crimes alleged at the Florida and New Jersey trials were intertwined.
Melgen wouldn’t have been able to shower favors on Menendez, give him jet rides, or kick in $700,000 to a super PAC that spent most of the money on his 2012 re-election if he wasn’t getting gobs of money from somewhere. The scale of Melgen’s fraud was such that for a time he was actually the largest recipient of Medicare reimbursements in the whole country.
According to testimony at his trial and allegations in civil lawsuits, Melgen performed unnecessary surgeries and injections on unsuspecting elderly people, including some with fake eyes or who were already blind. Others claimed they suffered eye infections after receiving injections of bacteria-laden medicine. Some lost sight in one or both eyes. The contamination stemmed from Melgen dividing up single-use vials of ocular drugs so he could bill Medicare multiple times.
We expect senators to act like senators, but can’t we also expect prosecutors to act like prosecutors? In a one-sentence statement, the Justice Department announced on January 31 that it would not retry Menendez. It cited a ruling a week earlier by the presiding judge throwing out several of the counts, suggesting that their case had been weakened.
In reality, Judge William Walls’s ruling strengthened the prosecution’s hand. He left intact the counts related to the jet rides and other gifts, as well as Menendez’ deliberate failure to disclose them. More importantly, Walls affirmed the validity of the prosecution’s “stream of benefits” theory presented at the trial, on which its case rested.
Menendez’s lawyers had argued that this theory conflicted with the Supreme Court’s 2016 ruling in McDonnell that for a bribery conviction, there must be a quid pro quo, or a direct connection between a payment and an “official act.” Under the “stream of benefits” theory, jurors would not have to be presented a “smoking gun” for each and every action Menendez took on Melgen’s behalf, but rather that Melgen’s favors were so extensive and frequent that such individualized proof would be unnecessary.
Walls ruled, “The Court concludes that McDonnell is not antagonistic to the stream of benefits theory… a rational juror could find that Defendants entered into a quid pro quo agreement.” Regrettably, the Justice Department decided not to give a second jury this chance. Its retreat is inexplicable. Even if the defendants were acquitted on the more serious charges, prosecutors might still have gotten a conviction on Menendez’ failure to disclose Melgen’s gifts. For one thing, Menendez had already admitted to it.
A criminal conviction would have been a criminal conviction. It would have forced Menendez to give up his seat or face calls for his expulsion. Menendez might be thought of as lucky, but the reality is far more unsettling. If those tasked with enforcement of the statutes and rules that ensure honest government can’t reel in a reprobate like Menendez, who can they legitimately go after?
Peter Flaherty is chairman of the National Legal and Policy Center.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.