By Phil Kerpen
On April 1, 2015 U.S. Senator Robert Menendez and codefendant Salomon Melgen were indicted on 22 felony counts of fraud, bribery, and related offenses. Now, finally, after over two years of Menendez serving as a member in good standing of the Senate Democratic Caucus while under indictment, the trial is set to begin. A last-ditch attempt for yet another delay was rejected by Judge William Walls and the trial date is September 6, 2017.
Menendez delayed the trial by more than two years by arguing that his efforts to intercede on behalf of Melgen with respect to visas for his girlfriends, a Medicare billing fraud investigation, and a Dominican port security contract were all official Senate actions that were protected by the Constitution’s speech and debate clause. That argument failed at the district court and on appeal to the Third Circuit; Menendez appealed to the Supreme Court but they declined to take it up.
In the meantime, Melgen has been convicted of 67 counts of Medicare fraud for a scheme that looted $105 million from taxpayers and faces 15 to 20 years in prison if his sentence is not reduced. Melgen allegedly bribed Menendez to scuttle an investigation into precisely this fraud scheme, one of the central allegations in the upcoming trial.
The media, which has largely ignored the whole sordid affair since the initial burst of coverage around the indictment, will soon be forced to confront the daily spectacle of a sitting U.S. senator standing trial. Democratic corruption will come under a microscope.
Menendez is innocent until proven guilty, but there is a strong likelihood that his upcoming trial will indeed prove his guilt beyond a reasonable doubt.
If Menendez is convicted but refuses to resign, the Senate Ethics Committee should act as quickly as possible to recommend expulsion, and if necessary the full Senate should vote on expulsion.
That course of action would be appropriate according to the standard set by the Democratic Senate Caucus itself as recently as 2008, when it issued a press release with the headline: “A Convicted Felon Is Not Going to Be Able to Serve in the United States Senate.”
“And as precedent shows us,” Democratic Leader Harry Reid said, a convicted felon senator “will face an ethics committee investigation and expulsion, regardless of his appeals process.”
“This is not a partisan issue,” Reid added.
He was talking about Ted Stevens, a Republican, and to the credit of Republicans they strongly agreed he should resign or be expelled.
But will Democrats change their tune if the felon senator is one of theirs? It’s hard to doubt that they will.
If the trial takes about a month, which is typical in such cases, a verdict could come by late September or early October. The Senate will be deep into appropriations, debt ceiling, tax reform, and possibly still health care. The gubernatorial election in New Jersey will be about a month away – with inauguration to follow in January. The temptation to stall will be irresistible to many ethically flexible Democrats.
Senate expulsion requires a two thirds vote. The last two times the Ethics Committee recommended expulsion were of Harrison A. Williams, Jr. (D-NJ) in 1982 and Robert W. Packwood (R-OR) in 1995 – and both resigned before an expulsion vote was taken by the full Senate.
If Democrats rally behind a convicted felon to allow him to continue to serve in their Senate caucus, they should be forced to do so in a floor vote. A failed expulsion vote would expose Senate Democrats as complicit in corruption, bribery, and the defrauding of taxpayers when it serves their political interests.
By Phil Kerpen