Opinion: Sen. Menendez's activities were objectionable, inappropriate – and probably legal

That’s what friends are for. Last week, Senator Robert Menendez (D-N.J.) was indicted by the federal government on bribery charges stemming from his association with Dr. Salomon Melgen, a wealthy Florida eye doctor. The Department of Justice (DOJ) charged that Menendez accepted luxury vacations, golf trips, expensive flights, and campaign contributions from Melgen in exchange for political favors. Menendez has vowed to clear his name, saying, “Prosecutors at the Justice Department don’t know the difference between friendship and corruption.”

As detailed in a 68-page indictment, Menendez’s conduct would likely strike many people as objectionable. However, the Department of Justice will have to meet a high burden to convince a jury of his guilt. Under U.S. law, the line between friendship and corruption can be blurry, and Menendez has several factors in his favor.

the problem is not that the DOJ doesn’t know the difference between friendship and corruption. The problem is that our justice system has been unwilling to take a clear stand against the influence of wealthy individuals and corporations on lawmakers. 

— Raúl Reyes

What transpired between Menendez and Melgen certainly seems outrageous. The senator rode on Melgen’s private plane multiple times (twice in violation of Senate ethics rules), stayed at his resort villa in the Dominican Republic, and enjoyed a 5-star Paris hotel on his friend’s dime. Meanwhile, Menendez’s office lobbied the Obama administration on Melgen’s behalf, on everything from Medicare reimbursement policy to a lucrative port security contract. But in order to make the corruption charges stick, the government must show that these favors were explicitly traded. The indictment against Menendez shows no such quid pro quo (“something for something”) arrangement between Menendez and Melgen.   

What seems to be missing here is any email, recording, or witness testimony directly linking Menendez’s actions to Melgen’s generosity. That’s the weakness in the case – and why Menendez is so confidently asserting that these favors all arose out of friendship. He and Melgen have a long history together, going back to the 1990s.

In his defense, Menendez may also invoke the "Speech and Debate" clause of the Constitution, which gives members of Congress immunity for their legislative acts. Article 1, Section 6, says that “for any speech or debate in either House, [Senators and Representatives] shall not be questioned in any other place.”  While it might be tough for Menendez to convince a jury that helping secure visas for Melgen’s foreign girlfriends was a “legislative act,” interaction with agency heads is part of a senator’s duties. And the Speech and Debate clause has been used in the past to derail federal investigations of other lawmakers.

As shady as Menendez’s activities may appear, Supreme Court rulings bolster his case. The government is basing its case against Menendez on the timing of Melgen’s donations to Democratic SuperPACs (political action committees) and Menendez’s subsequent advocacy on his behalf. Yet the Supreme Court decision in McCutcheon v. FEC (2014), said that “Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s duties, does not give rise to such quid pro quo corruption.”

In addition, Menendez can rely on the Court’s ruling in Citizens’ United (2010), which the New York Times recently noted “narrowed the constitutional definition of political corruption and made it harder for prosecutors to prove bribery.” Both of these cases support the idea that injecting money into politics does not necessarily result in corruption – which lines up neatly with Menendez’s defense.

Sure, Menendez’s conduct leaves a lot to be desired. It’s highly unlikely the senator would be willing to go to such great lengths for an ordinary New Jersey resident. (Melgen, who lives in Florida, isn’t even a constituent). It’s easy to view Menendez’s actions as inappropriate or shameful. That doesn’t mean they crossed the line into illegality. Consider that the Department of Justice has erred before in going after politicians. They bungled a corruption case against Sen. Ted Stevens (R-Alaska) in 2008, and his indictment was ultimately dismissed at the DOJ’s request.

To paraphrase Menendez, the problem is not that the DOJ doesn’t know the difference between friendship and corruption. The problem is that our justice system has been unwilling to take a clear stand against the influence of wealthy individuals and corporations on lawmakers.

The most shocking aspect of the Menendez case is that the senator’s conduct may be within the law. More than any indictment of Menendez, this reality is an indictment of the corrosive influence of money and spending on our political process.