DOJ Pulls Its Punches on Menendez

AP Photo/Mel Evans
AP Photo/Mel Evans
Washington, DC

Breitbart News reports that DOJ prosecutors have not yet requested a hearing over attempts to compel two staffers for embattled New Jersey Sen. Robert Menendez to testify before a federal grand jury that’s investigating corruption charges against the Senator. The story by Michael Patrick Leahy, over a seemingly minor procedural motion, calls into question how seriously DOJ is treating the investigation.

The failure of DOJ lawyers to request a hearing, in fact, suggests the possible prosecution of Menendez is more about generating damaging headlines for the Senator than putting an allegedly corrupt politician behind bars.

The DOJ investigation, announced in the late afternoon last Friday, involves very serious charges of corruption. Worse for Menendez, the alleged misdeeds are very simple to understand and don’t involve the sophisticated schemes found often in movie plots. Menendez allegedly used his office to directly intervene on behalf of a mega-donor, Dr. Salomon Melgen, in two very specific instances.

In the first case, Melgen was locked in a dispute with the federal government over allegations he over-billed Medicare by $9 million. In the second instance, a federal program to donate port security equipment to the Dominican Republic potentially threatened a contract Melgen had with the island nation to provide port security equipment.

Yes, it seems Melgen, a Florida eye doctor, also had a business providing port security to the developing Caribbean nation.

The thrust of the DOJ’s potential case against Menendez is that the Senator, or his staff, met with federal health department officials on Melgen’s behalf in the over-billing case and also intervened, through both meetings and Senate committee hearings, to halt or slow down the government’s donation of port security equipment to the Dominican Republic.

Testimony from Menendez staff, who were present in some of these meetings with federal officials, is central to the DOJ case. Their accounts of these meetings, under oath, could substantiate the federal claims that Menendez’s involvement in these case was inappropriate.

The DOJ, in fact, did call two senior Menendez staffers to testify before the grand jury. These staffers refused to answer questions, citing the Speech of Debate Clause of the Constitution, which generally shields legislators or their staff members from answering questions related to their legislative duties.

A federal district court ordered the aides to testify, essentially ruling that the Debate Clause didn’t apply. The aides appealed this ruling to a higher court, the 3rd U.S. Circuit Court of Appeals, which returned the case to the lower court to consider the Debate Clause question in more detail.

On Wednesday, however, a high level source with the lower court told Breitbart it didn’t think this hearing would actually take place, because neither party in the case had requested a hearing. In other words, at this time, the DOJ is not pursuing action to compel the staff to testify.

It is possible the DOJ thinks it has enough evidence to pursue corruption charges without the aides’ testimony. A more interesting possibility, however, is that the DOJ isn’t pursuing the case with its full arsenal of prosecutorial tools.

Menendez has emerged as a vocal critic of two of the Obama Administration’s major foreign policy efforts. A Cuban-American, Menendez strongly, and publicly, opposes the Administration’s efforts to normalize relations with Communist Cuba.

A former Chair of the Senate Foreign Relations Committee, Menendez has also been an outspoken opponent of the Administration’s efforts to negotiate a nuclear deal with Iran.

Allegations surrounding Menendez’s relationship with Melgen first surfaced in the press more than two years ago. The first reports concerned salacious rumors about their involvement with prostitutes, but far more serious and substantive allegations of corruption were reported soon after. For two years, serious questions have swirled around the Senator’s relationship with the Florida eye doctor/port security entrepreneur.

The present DOJ investigation, coming just weeks after Menendez vocally criticized the Administration’s foreign policy objectives, has raised questions about possible political motives behind the potential charges.

It should be noted that any political influence behind the investigation does not diminish the very serious charges levied against Menendez. The DOJ’s decision to not request a hearing over the aides’ testimony, however, does suggest that it isn’t pursuing the case against Menendez with its full arsenal.

The decision also means that, for now, the case is in a kind of legal limbo. It is difficult to imagine the feds would be able to fully prosecute Menendez without the testimony of the aides. It raises the question that a prosecution may not be the end goal of the case.

Up to this point, the DOJ case against Menendez could be seen as a warning shot across the Senator’s bow. Perhaps Menendez’s future actions will determine whether or not DOJ finally takes the water-line shot.