A Senator’s Privilege: How Menendez Declared His Own Conduct To Be Corrupt In A 2010 Senate Trial

220px-Robert_Menendez,_official_Senate_photoBelow is my column in the Hill newspaper on the ongoing jury deliberations over the alleged crimes of Senator Robert Menendez (D, N.J.).  An alternate juror has said that she would have voted to acquit.  It is a surprising result given the significant gifts showered on Menendez.  The best witness against Menendez might have been Menendez himself.

Here is the column:

The charges were laid out plainly before U.S. Sen. Robert Menendez (D-N.J.): “… engag[ing] in a corrupt relationship [and] as part of this corrupt relationship … solicit[ation] and accept[ance] of numerous things of value, including meals, trips, home repairs, and car repairs, for his personal use and benefit while at the same time taking official actions that benefitted [his friend].”

Menendez was resolute. He stood up in front of his colleagues and declared that receiving gifts ranging from free meals to wedding gifts was, plain and simple, corruption.

Yet, this was no confession in the trial that has been unfolding in New Jersey, where Menendez is now accused of nearly identical conduct.

It was 2010, and Menendez was voting against federal Judge Thomas Porteous in Porteous’s impeachment trial.

The jury in New Jersey has not been told of Menendez’s 2010 view of such gifts as corrupt practices, nor that he previously voted to convict a jurist who, if anything, had a better defense than Menendez in the receipt of such gifts.

Of course, hypocrisy is nothing new in Washington. However, Menendez set a new low, not just this year in arguing that his accepting the same gifts was not a corruption, but back in 2010 as well: It turns out that, when Menendez was voting against Judge Porteous as unworthy of office, he was accepting the same type of gifts from Florida ophthalmologist Salomon Melgen.

I was lead counsel in the Porteous impeachment trial on the floor of the Senate. I argued many of the same points that Menendez’s lawyers are arguing in New Jersey. In my argument before the 100 senators, I noted that Porteous did not violate the code of judicial ethics at the time of accepting free lunches and other benefits, noting that the senators themselves had the same rule at the time and regularly allowed lobbyists to pay for lunches and to give gifts.

What I did not know is that, shortly before the impeachment trial, Menendez was accepting a host of gifts, including an $8,000 free flight in October 2010. He would ultimately accept luxury trips to Paris and a Caribbean villa. These gifts dwarfed anything that Porteous was accused of accepting. Indeed, the Menendez indictment reads exactly like the four impeachment counts — only much much worse.

The jury has indicated that it might be deadlocked on the charges against Menendez. It was not aware that the most powerful witness on such corrupt practices would have been Menendez himself. What makes his conduct particularly egregious is that he was bilking Melgen while publicly denouncing these very same practices in judging another man.

In reality, Porteous had strong arguments that it was common for judges at that time to have lunches bought for them. Moreover, a wedding gift to Porteous’s son came from lawyers who were close family friends; they were also counsel in a case that still had a pending opinion before Porteous. It was not uncommon, in this and other small judicial districts, for judges to hear cases with lawyers who were familiar to or even close friends of the judges.

Obviously, the Senate did not see it that way, but the one senator who should have been sympathetic was Menendez, who was accepting far larger gifts from a doctor who he was helping in various respects as a public official.

Notably, while many of his colleagues voted “not guilty” on Dec. 8, 2010, to Count Two (which focused on the gifts and travel benefits) against Judge Porteous, Menendez did not. He voted “guilty” on that and all of the other counts.

Menendez may ultimately escape conviction based on the very arguments that he rejected when another man stood accused in the well of the U.S. Senate. In his own trial, he called a couple dozen witnesses, including Cory Booker, New Jersey’s junior Democratic U.S. senator, and Sen. Lindsey Graham (R-S.C.), who spoke to his good character.

The one witness who did not appear was Menendez himself. While he certainly acted within his rights under the Constitution, Menendez has refused to answer the charges of bribery before the jury and the public.

Menendez’s lawyer, however, told the jury that the receipt of such gifts was actually a good thing and that those accusing Menendez were attacking Hispanics everywhere. Defense counsel argued to the jury that “Sal (Melgen) and Bob (Menendez) were part of a fellowship of Hispanic Americans. Entrepreneurs, businessmen, doctors, politicians. … This case isn’t only an attack on those two men. It’s an attack on that whole group.”

In the Porteous trial, Menendez rejected a very similar argument that these small judicial districts are a close-knit group of lawyers and others working in and around the courts. They often know each other socially, including a trip to Las Vegas that was captured in photographs used in the Senate trial.

Indeed, Melgen’s defense counsel, Jonathan Cogan, showed pictures of these vacations and insisted: “I see someone down there spending time with friends. That’s not what a bribe looks like.’’

Of course, in 2010, Menendez not only had no trouble seeing corruption in the Porteous pictures but was able to see it while planning the same type of trips and gifts from Melgen.

The writer F. Scott Fitzgerald once wrote: “The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.” In Menendez’s case, he was able not only to function but to flourish in the gifts showered upon him by the good doctor.

In the end, all of this proves either that Menendez is a corrupt hypocrite or an inspiring politician — largely depending on whether you view the trial from inside or outside the Washington Beltway.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as lead counsel in the last impeachment trial held in the U.S. Senate.

28 thoughts on “A Senator’s Privilege: How Menendez Declared His Own Conduct To Be Corrupt In A 2010 Senate Trial

  1. I would argue that there is a difference between a judge, who is supposed to be a disinterested neutral party, and a congressman or senator, who by the nature of his office is a political creature, accepting gifts.

    • Agreed after all they are exempt from the insider trading rules and routinely retire as multi millionaires and quite often to jobs paying equally big bucks to a greatful constituency of one or two …..special interest groups. What is the difference between that and a grade schooler writing a letter of accolade for getting help to re-roof the storm damaged gym? The grade schooler after all is representing tax paying parents who won’t have to foot the bill and grade schooler has about the same education in politics and probably more in ethics than does the politician.

  2. all of this proves either that Menendez is a corrupt hypocrite or an inspiring politician — largely depending on whether you view the trial from inside or outside the Washington Beltway.

    I don’t believe that is either/or but rather one and the same. Of course it would be of significance to have enough of a view to form an opinion; especially if you are called as a juror. So after hearing months of testimony and a after a full day of deliberations, you don’t end up asking the judge a civics 101 question. Which reminds me, doesn’t the jury pool come from the registered voter rolls?

    On their first full day of jury deliberations at the bribery trial of Senator Robert Menendez, a juror asked the judge a basic question: What is a senator?

    https://www.bloomberg.com/news/articles/2017-11-07/senator-menendez-juror-asks-trial-judge-what-is-a-senator

  3. This is the oligarchical system from top to bottom. Financial contributions of one sort or another exist in all systems, however, the US oligarchical system is structured on purchasing politicians and their decisions. The hypocrisy is unavoidable. This Menendez circus is the great diversionary ritual performed to convince the voters that this is a democracy and that there is integrity. Small potatoes are trundled out on a routine basis with hypocritical representatives raising their fists against the despoilers of the American system. At the same time they are yoked to special interests and mega donors. The populace eats it up and blames the other party as being corrupt or part of this or that ethnic group. When some do it, those that are new to the game, they stand out. The fact of the matter is that bribery to outright ownership is the foundation of American politics. Name one politician that would exist today if it were not for special interests and/or mega donors. Corruption is founded on this.

    • issac – for someone who has such a slippery grasp on the concepts of the US Constitution, you sure seem to have a firm grasp on corruption. Do you know that Hillary is probably the most corrupt politician alive? She makes Tammany Hall look like kindergartners.

  4. Notably, while many of his colleagues voted “not guilty” on Dec. 8, 2010, to Count Two (which focused on the gifts and travel benefits) against Judge Porteous, Menendez did not. He voted “guilty” on that and all of the other counts.

    Well, that’s how the legislative aide tasked with following the dispute told him to vote.

  5. Is there any way to prevent political bribery? Currently the best way for a political representative to make voting decisions, is to follow the instructions of his largest donors. His constituents have a wide array of conflicting interests so there is no way he can serve his constituents. Maybe putting scholars in office rather than popular charlatans would help.

  6. That nice social organization that Menedez tried to make himself part of is usually known as the “Mexican mafia”. The question now is, how long can the jurors stand each other without killing themselves or their fellow jurors before coming to a verdict.

  7. “In the end, all of this proves either that Menendez is a corrupt hypocrite or an inspiring politician…”
    ~+~
    The former is self-evident, the latter might be better said to be as an “aspiring politician”–aspiring to be the best politician money can buy.

    Since our current political system trains individuals to promise favorable legislation and be rewarded with gifts, prestige, status, graft, and other clintonian pursuits, achievement is measured in terms outside the collective best interests of the citizenry to the great benefit of 535 elites and the various incarnations executive branch leadership.

    The aspirations of these politicians means that they can without recourse engage in violating the civil rights of individuals not only in our country, but a great many more elsewhere; where they actually clamor for elective wars that costs hundreds of thousands of civilian lives and upheave entire regions of the world. Not only can they do that, but be done in time to attend galas with all the offerings of kings and queens of times past.

    So why would justice be equal between we commoners and kings? Because they believe they themselves are the law.

  8. Turley makes a compelling argument for convicting this swamp creature of being a slimy swamp creature. The Supreme Court, however, has made it exceedingly difficult to convict someone of a crime in this situation, based on the First Amendment.

    I’m curious whether Turley supports the Supreme Court’s broad reading of the first amendment in this situation. I’m generally a strong supporter of the freedom of speech, but the notion that money = speech is fallacy. One need look no further than Senator Menendez and Bob McDonnell, the former governor of Virginia, to confirm this.

    • but the notion that money = speech is fallacy.

      Its regarded that way by partisan Democrats who fancy their own corporations have rights (see the publishers of the Sulzberger Birdcage Liner) but that the opposition’s efforts through incorporated enterprises should be criminalized.

    • That fallacy is based on tortuous twisted path of some two hundred years and based on original English law and the Commerce section of the Constitution. It holds that those with lots of money have the right with out explanation to take all of your rights without exception.

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