For critics of President Obama’s appeasement of Iran’s nuclear program, the federal indictment of Senator Robert Menendez on corruption charges earlier this year seemed highly suspicious. In a single stroke, the Justice Department silenced the most vocal Democratic opponent of the president’s foreign policy as well as forcing him to step down as ranking member of the Senate Foreign Relations Committee. But though the takedown of Menendez served the administration’s interests, the investigation into his dealings with Doctor Salomon Melgen, a friend and wealthy contributor, predated the debate about the Iran deal or even the senator’s public feud with the White House over its attempts to spike sanctions on the Islamist state. While Menendez’s fans stood by him, most of the country considered the case as just one more example of the sleazy political culture that has long prevailed in New Jersey. But Menendez’s response to the indictment in court on Monday raises some interesting issues that transcend his own fate. Though corruption in New Jersey politics seems unremarkable the decision of the Justice Department to treat routine constituent service that is not, in and of itself, illegal as subject to prosecution, can be seen as an attempt to subvert the separation of powers as well as to call into question the right of citizens to contribute to political campaigns.
The prosecution of Menendez hinges on the senator’s intervention with the government to ease the way for Melgen to receive reimbursements from Medicare as well as his efforts to support a port security deal from which the doctor would profit. Neither of those actions is per se illegal. But the indictment considers them to be payment in exchange for Melgen’s $600,000 contribution to a pro-Menendez political action committee even though they have no smoking gun document or evidence proving that this was a quid pro quo agreement.
Is it reasonable to assume that such a large gift meant that Menendez was more inclined to assist Melgen in his dealings with the government than he might otherwise be? Sure. But it is one thing for something to look fishy. It is quite another for the government to destroy the career of a prominent senator on such an assumption. After all, if the same standard were applied to the actions of the Hillary Clinton State Department with regard to the interests of donors to the Clinton Family Foundation, the former First Lady would be in the dock with Menendez and not be the presumptive Democratic candidate for president in 2016.
Moreover, the further assumption on the part of the government that independent contributions are, by definition, necessarily corrupt is based on a view of campaign finance law that runs afoul of the Constitution’s protection of the free exercise of political speech as defined by the U.S. Supreme Court. While the prosecution of Menendez is portrayed in the press as being above politics and unrelated to the debate on Iran, it is a direct result of the administration’s anger about the court’s Citizens United decision and a backhanded attempt to undermine or overturn it.
It may be too much to ask ordinary citizens with a cynical view of politics to view this as a constitutional issue. But whatever you may think about the obviously cozy relationship between Menendez and his wealthy friend, if the Justice Department can criminalize his actions on a mere assumption then no member of either the House or the Senate is safe from similar attentions. And if that doesn’t bother liberals and Democrats who don’t like Menendez and are inclined to support any aim pursued by Attorney Generals Eric Holder and Loretta Lynch, they should ponder how they would feel about the next Republican-run Justice Department scrutinizing liberals who get big contributions from donors.
Though the Menendez case seems like something out of “The Sopranos,” it is, in fact, an unprecedented intrusion by the executive into the rights of the legislative branch. Moreover, there is no principle in law that regards Menendez as having a fiduciary responsibility to the taxpayers to see that their money is well spent, rather than being directed to his friends. If there were, then the entire Congress would be under indictment.
This case won’t be resolved any time soon. Indeed, Iran may well have a nuclear bomb long before Menendez’s efforts to have the charges thrown out and then a possible trial and appeals are finished. But the principle at stake actually transcends the battle over Iran or even campaign finance laws. If Menendez can be singled out in this fashion, then any legislator or office holder will be easy prey for prosecutions from hostile administrations or U.S. Attorneys looking for prominent scalps to hang on their walls.
