Dr. Salomon Melgen is being held in a Florida jail without bond on a second set of charges. The Florida ophthalmologist is one of three men involved in an August 2012 meeting with Health and Human Services Secretary Kathleen Sebelius. That gathering is at the center of criminal charges of corruption brought by a New Jersey federal grand jury against Melgen and one of the other two key players, Senator Robert Menendez (D-NJ).
The third key player, the man who actually organized that August 2012 meeting, is Senate Minority Leader Harry Reid (D-NV). He’s being protected by a selective Department of Justice, a stonewalling Capitol Police, and a compliant and incurious mainstream media and remains unindicted. He’s even threatening to hijack the United States Senate and force a vote on the controversial Attorney General nomination of Loretta Lynch. As the Wall Street Journal noted, “Harry Reid was at the same meeting that Justice says is evidence of a crime,” in its corruption indictment of Melgen and Menendez.
With the escalation of the controversy surrounding the true cause of Harry Reid’s gruesome New Year’s Day injuries, this equally significant news story involving Reid has slipped through the cracks, but it may prove as damaging to Reid as any of the many other controversies in which he is currently involved:
1. Outstanding questions about the lack of credibility of his ever-shifting story about those New Year’s Day injuries.
2. His admission that he, in effect, blatantly lied on the floor of the Senate in 2012 about Mitt Romney’s having not paid taxes.
3. His prominent mention in the corruption indictment against Menendez and Melgen.
4. The clear advocacy position he undertook to support Melgen’s allegedly corrupt action.
5. His questionable conduct in promoting EB-5 Visas for investors in a Las Vegas hotel and casino which his son represented legally.
Melgen was indicted on 76 separate counts of Medicare fraud totaling $190 million between 2008 and 2013 by a South Florida federal grand jury earlier this week. A good portion of that $190 million in fraud was for the same kind of triple-billing he engaged in during 2007 and 2008 that HHS said he had overbilled Medicare $8.9 million for previously.
The latest set of Medicare fraud charges against Melgen go well beyond the fraudulent $8.9 million Lucentis overbilling in 2007 and 2008 Reid and Menendez attempted to justify to Secretary Sebelius in that August 2012 meeting. In addition to that transgression–one which Melgen continued to engage in from 2008 to 2013, according to the latest indictment–Melgen also allegedly engaged in some additional fraudulent practices:
1. Falsely diagnosing many patients with serious eye conditions.
2. Performing unnecessary and costly procedures such as laser surgery and eye injections for which he would bill Medicare.
3. Splitting vials of a drug called Lucentis intended for single use into multiple-use vials and then billing Medicare as if each were for a single use, thereby making “exorbitant profits.”
4. Performing unnecessary and costly procedures such as laser surgery and eye injections for which he would bill Medicare.
Before, during, and after the 2012 meeting in the Majority Leader’s office, both Reid and Menendez pressured Sebelius to intervene in an ongoing HHS adjudication on the disputed 2007 and 2008 Medicare overbilling and force her HHS subordinates to find in Melgen’s favor.
To her credit, Sebelius refused to do so.
In its indictment of Menendez and Melgen on public corruption charges, the Department Justice says that $600,000 of the $700,000 Melgen donated to Reid’s Senate Majority PAC (supposedly earmarked for Menendez’s 2012 re-election campaign) was a quid pro quo for his advocacy to Sebelius.
Curiously, the Department of Justice makes no mention of the additional $100,000 given to Reid’s Super PAC that was not earmarked for any campaign. It is not much of a stretch to argue that this donation was a quid pro quo between Reid and Melgen, in which Reid received a financial benefit that helped him to remain Senate Majority Leader after the 2012 election in return for his advocacy on Melgen’s behalf for what the Department of Justice subsequently called Medicare fraud to Secretary Sebelius.
The $700,000 Melgen donated to Reid’s Senate Majority PAC in 2012 was enough to persuade the then-Senate Majority Leader to organize an August 2012 meeting in which Melgen’s co-indictee, Sen. Robert Menendez (D-NJ), directly advocated on his behalf with Health and Human Services (HHS) Secretary Sebelius for her intervention in an ongoing dispute with HHS over $8.9 million Melgen overbilled Medicare in 2007 and 2008.
It was not, however, enough to get Melgen out of jail this week.
Melgen has been denied bail on this second set of charges, on the grounds that he is a flight risk. A native of the Dominican Republic, the wealthy Florida ophthalmologist has extensive assets and political connections in his native country, which does not have an extradition treaty with the United States on Medicare fraud charges.
Melgen is now jailed South Florida without bond, while one former recipient of his largess, Senator Reid, is threatening to shut down the United States Senate unless it holds a confirmation vote on Attorney General nominee Loretta Lynch. A second beneficiary of Melgen’s generosity, Senator Menendez, remains free on bond, and continues to serve in the Senate.
The disparate treatment of these three men has raised more than a few questions about the equal application of justice.
Lawyers for both Melgen and Menendez could argue that the difference between the illegal graft in which they are said to have engaged in and legal graft which goes on every day in Washington is not the nature of the actions themselves, but rather the position of the politician who commits those acts.
Why is it, they could ask, if Senator Menendez engages in quid pro quo with Melgen it is illegal graft, but if then-Senate Majority Leader Reid engages in the same quid pro quo with Melgen, it is legal graft? (emphasis added)
In effect, attorneys for Melgen and Menendez may argue that the indictment of their clients while ignoring the conduct of Reid is an instance of selective prosecution. They are likely to find this article, written by Jonathan Keim at National Review in 2014, which notes that the Constitution has remedies for selection prosecution, of interest:
The Supreme Court has applied the Fifth Amendment Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to prohibit selective prosecutions.
The Department of Justice may have brought the second set of charges against Melgen to put further pressure on him to give evidence against Menendez that could aid in his prosecution.
Such a strategy could backfire on Obama’s Department of Justice if Melgen starts singing about Reid’s involvement as well as Menendez’s.
The relationship between Reid and Melgen during the period between the first donation of $300,000 made by his wholly owned Vitreo-Retinal Consultants on June 8, 2012 to Reid’s Senate Majority PAC and Reid’s re-election as Senate Majority Leader in November 2012 is one key area Melgen could cast some light on.
For instance, Melgen could tell federal prosecutors if he was on his private plane when he sent it up from Florida to pick up Reid in Washington and fly him up and back to Boston for a fundraiser on June 18, 2012.
While Reid’s Senate Majority PAC reimbursed Melgen later for the cost of that flight, federal prosecutors might be very interested to learn about what Melgen and Reid discussed that day, if Melgen was also on the flight. They also might want to know if former Reid aide and Senate Majority PAC fundraiser Jake Perry (most likely the person identified as Fundraiser 2 in the Menendez indictment according to the New York Times) was on the same flight and what he had to say that day.
Melgen could also tell federal prosecutors what he expected to receive from Reid in return for the additional $100,000 contribution his Vitreo-Retinal Consultants made to Reid’s Senate Majority PAC ten days later on June 28, 2012.
Melgen could further tell federal prosecutors what he expected to receive for the $300,000 his Vitreo-Retinal Consultants donated to Reid’s Senate Majority PAC on October 16, 2012.
Melgen could also shed light on what his attorney expected when he forwarded a memo to Reid fundraiser Jake Perry on October 19, where he claimed, “it would be appropriate for the Secretary of the Department of Health and Human Services to intervene during the pendency of the Practice’s [Melgen’s $8.9 Million Medicare overbilling] appeal before the MAC [the HHS appeals board] to clarify that, as to the period prior to January 1, 2011, CMS policy permitted physicians physicians and providers to bill for overfill.”
Another thing Melgen could tell federal prosecutors is the meaning of Perry’s subsequent email response sent directly to him, cited in the Menendez indictment:
I’m going to see him [Harry Reid] on Tuesday. I will give him this directly. Is that ok?
I am sure he will forward this to [the Senior Health Counsel for Senator 3] in his office. She was the staff person in the meeting before [probably the meeting with Sebelius on August 2, 2012]. I would suggest someone come in and brief her on the updated information. (emphasis added)
While it is difficult to predict how courts might respond to a potential selective prosecution defense set forward by Melgen and Menendez, one possible legal step that could forestall its use by Melgen and Menendez is one that the politically correct Department of Justice under President Obama is almost certain to reject: initiate a federal investigation of Senator Reid as well.
However, if Menendez starts singing to federal prosecutors about Reid’s involvement in the quid pro quo, they may be hard pressed to explain any reluctance to use such potential testimony as the basis to launch an investigation of Reid.