On Friday the Justice Department decided to leak to the press that an indictment of Senator Robert Menendez on corruption charges was imminent. While the ongoing investigation of the New Jersey Democrat, the most important critic of President Obama’s foreign policy, was no secret, the timing of the announcement raised more than a few eyebrows. Coming as it did the same week that Israeli Prime Minister Benjamin Netanyahu spoke to Congress about Iran, an issue on which there has been heated disagreement between Menendez and the president, the willingness of the government to go public with its plans to seek to put the senator on trial gives the prosecution the air of a political vendetta. But would such an accusation, which would make the president appear more like a banana-republic dictator than the leader of the free world, be fair? Not entirely. The case involves the sort of cozy cronyism that makes both liberals and conservatives queasy. It also reflects the somewhat loose political morals of the Garden State. But in addition to that, the decision to try to nail Menendez may tell us more about the way out-of-control federal prosecutors act than it does about an Obama administration that likes to punish its enemies as much as any of its predecessors.
Over the weekend the New York Sun discussed the rather suspicious nature of the timing of the plans to indict Menendez. The juxtaposition of the announcement about hauling the senator into court not long after Menendez publicly stood up and challenged the president at a Democratic retreat gives the affair the stench of payback.
But it should be noted that the investigation of Menendez’s dealings with Dr. Salomon Melgen, a wealthy contributor and longtime friend of the senator, preceded the current argument. Indeed, it started even the first clashes between the administration and Menendez over sanctions on Iran that Obama opposed (but now brags about having implemented). Even if the president is quite pleased with the senator’s current predicament, he probably didn’t initiate the investigation or direct it. Indeed, the decision on the part of prosecutors to seek an indictment now, just as Menendez’s disagreements with the president on Iran and Cuba have made headlines, may be a function of the expiration of the statute of limitations on his alleged crimes rather than a presidential order to take down a political enemy. Given that he is from New Jersey rather than some farm state, many will simply assume that as the senator from Tony Soprano’s home, he has to be guilty of corruption.
But as the Sun points out, the Justice Department has a less-than-stellar record when it comes to investigations of sitting politicians. That’s not just because of the example of Alaska Senator Ted Stevens who was hounded out of office by prosecutors who secured his conviction by misconduct that eventually led to the entire case being thrown out. But the senator had already been defeated for reelection and died in a plane crash before he was vindicated.
Even worse, the efforts by the government to obtain Menendez’s emails, a potential violation of Congress’s impunity on matters of speech and debate, are deeply troubling. So far the federal courts have opposed that fishing expedition as a breach of the Constitution’s protection of Congress against the executive.
Some will see that as a hazy point of law. But it is no hazier than the question of what divides normal constituency service on the part of a representative or senator from actual corruption. So long as we give Congress such enormous powers to intervene in economic matters, any action by anyone in the House or Senate is open to suspicion. Even if you don’t like the smell of Menendez’s relationship with Melgen, it is puzzling why this has earned the senator so much attention from the Justice Department while other dealings by his colleagues are no more or less suspicious.
As with so many other federal cases brought against prominent persons, it’s hard to escape the feeling that the only reason this affair may go to trial is the lust of U.S. attorneys for the scalps of celebrities. Once these legal monarchs have the bit between their teeth, they rarely let go and continue probing the lives of the objects of their fascination until they find something, anything, on which they can procure an indictment, no matter how fuzzy the law or unclear the facts about the alleged crime may be. And prosecutors use their ability to manipulate the press to aid their campaigns. All sorts of allegations have been leaked about Menendez in recent years though much of it, including some scurrilous charges about sexual misconduct, has shown to be false or least unproven. The fact that he has been an exemplary senator and an eloquent voice on foreign policy doesn’t place Menendez above the law. But neither should his prominence subject him to unreasonable prosecutions.
It’s hard to know what to think about the case against Menendez because our assumptions about New Jersey politics seem to override the presumption of innocence due any person in this situation. But when you throw in the obvious desire of the administration to discredit its most courageous foe on foreign policy, it’s difficult to view this dispassionately. Misconduct should be punished but so should prosecutorial overreach and the use of the Justice Department for political ends. Just as legislators should avoid the appearance of corruption, so, too, should prosecutors and their political bosses.