Menendez Attorneys Introduce Political Spin to Legal System With Claim DOJ Prosecutor ‘Presented False Testimony’ to Grand Jury

AP Photo/Mel Evans
AP Photo/Mel Evans

Robert Menendez’s  powerful Washington attorney, Abbe Lowell, is going after the integrity of Department of Justice prosecutor Peter Koski in a 400-page document filed with the Federal Court in New Jersey. That’s where Menendez and his good friend and financial contributor Dr. Salomon Melgen are set to be tried on charges of public corruption.

Lowell, a partner at the prestigious Arnold & Porter law firm, took a page from Menendez’s political spin operation and introduced it to the legal system on Monday when he asserted in the filing that Koski “presented false testimony from an FBI agent to the grand jury hearing the case.”

Lowell will have a hard time proving Koski was deceptive, especially if the presiding judge reads Politico.

Not only does Koski have a stellar track record of successful prosecutions and a squeaky clean record for integrity, the “false testimony” Lowell claims Koski presented to the grand jury that indicted Menendez and his friend, Dr. Salomon Melgen, on charges of public corruption is supported by statements made by former HHS Secretary Kathleen Sebelius to Politico earlier this year.

Lowell and the rest of Menendez’s defense team claim that FBI agent Gregory Sheehy’s statement to the grand jury that the August 2012 meeting was “all about Dr. Melgen” was untrue and that it “directly contradicted what the officials had told the FBI.”

The Washington Post elaborated on Lowell’s claims:

In this instance, the agent was describing what then-HHS Secretary Kathleen Sebelius and another top administration official said about two separate meetings they had with Menendez, in which the senator raised questions about a billing policy that had led to the department accusing Melgen of overbilling the government by millions of dollars, according to the defense filings.

Under questioning from Koski before the grand jury, the FBI agent said Sebelius and Medicare chief Marilyn Tavenner both knew that Menendez’s purpose in the meetings was to advocate for Melgen, according to the filings from Menendez’s lawyers.

“Was it also clear that the meeting was about Dr. Melgen?” Koski asked the FBI agent, Gregory Sheehy, according to a grand jury transcript included in the defense filings.

Sheehy responded: “Perfectly clear. .?.?. It was all about Dr. Melgen, the meeting.”

But the defense contends that the agent’s description to the grand jury directly contradicted what the officials had told the FBI.

In March, however, Politico reported that Harry Reid (D-NV) briefed then-Secretary of Health and Human Services Sebelius, who was one of the officials interviewed by the FBI, that the purpose of the August 2012 meeting he arranged for her to attend in his offices with Senator Menendez was to address “billing issues with Dr. Melgen.”

As Politico reported:

In August 2012, Sebelius had been summoned to Capitol Hill for a private meeting with Menendez in the office of Sen. Harry Reid (D-Nev.), then the Senate majority leader. According to Sebelius, the topic of the meeting was a multimillion dollar billing dispute between the Centers for Medicare and Medicaid Services and a company run by Melgen, a Florida ophthalmologist.

Sebelius said she asserted that the rules had been administered in an “even-handed” manner, rebutting the Democratic senator who grilled Sebelius along with Jonathan Blum, a former principal deputy administrator for the CMS.

“It was pretty straightforward,” Sebelius said in a phone interview Monday. “We just reiterated what was not new information to the senator, but reinforced the fact that this was the procedure – the rules were clear that they were uniformly administered. And then the meeting ended.”

In its article Monday, the Post did not mention Sebelius’s March statement to Politico. Instead, it reported almost exclusively on the claims made by Menendez’s attorneys:

Excerpts of internal FBI memos summarizing agents’ interviews with Tavenner and Sebelius suggest that there was no such clarity, the filings say.

“Tavenner said they did ‘not specifically discuss Melgen’ and she at least twice noted that she could not remember if his name even came up,” according to an excerpt of an FBI memo cited by the defense.

Sebelius “said she could not recall whether MELGEN’s name specifically came up during the meeting,” another memo said. She “could not recall what MENENDEZ specifically wanted.”

Department of Justice spokesperson Peter Carr told the New York Times that federal prosecutors “will file a response [to the claims of Menendez’s attorneys] at the appropriate time with the court.”

The political spin on which Lowell and the other members of Menendez’s legal team are hanging their claim that Koski “presented false testimony,” echoes the carefully parsed semantics Menendez’s political team advanced prior to his indictment on public corruption charges in April.

Back in March, Menendez spokesperson Tricia Enright told Politico, “It is also our understanding that the DOJ is fully aware that the senator did not mention Melgen during their meeting.”

Sebelius did not disagree with the characterization that Menendez did not mention Melgen’s name during the meeting. She was well aware, however, that the meeting was about Melgen. Menendez didn’t have to specifically use Melgen’s name during the meeting because everyone involved—Sebelius, HHS legal counsel, Menendez, Senator Harry Reid, and Melgen himself—knew that Menendez had specifically pressed Reid to call the meeting to discuss Melgen’s pending billing dispute with HHS.

In March, Politico clearly spelled out the central role Melgen’s billing dispute played in Menendez’s push to call the meeting

But Sebelius recalled that she had been told the purpose of the meeting was to discuss “billing issues with Dr. Melgen,” raising red flags that prompted her to take the matter to the HHS counsel’s office before sitting down with the senator.

Sebelius said she was “concerned that I knew enough about the investigation” into Menendez’s actions that she “didn’t want to open the door to any inappropriate discussion” during their meeting. But HHS attorneys assured her that she could meet with Menendez, and she said she told the senator the dispute was being handled by an outside administrative review board.

As Breitbart News reported earlier, and as several sources familiar with the HHS billing dispute with Menendez confirm, both Tavenner and Sebelius were well aware that the purpose of the meeting was to discuss Melgen’s case. It was for that very reason that Sebelius brought in HHS General Counsel William B. Schultz to provide advice on the matter.

The New Jersey Democrat [Menendez] met with Centers for Medicare and Medicaid Services (CMS) Director Marilyn Tavenner on June 7, 2012 in an apparent attempt to persuade her that his close friend and major donor, Dr. Salomon Melgen, did not owe the federal government $9 million for Medicare overbilling.

It was a pure New Jersey-style political power play on Menendez’s part, since the CMS had carefully documented Melgen’s egregious violation of clear and widely understood billing practices.

Tavenner was unpersuaded by Menendez’s pitch. He reportedly left the meeting frustrated he had not been able to deliver a solution to his friend’s problems with the government.

Menendez decided to turn up the political pressure by speaking to Tavenner’s boss, Secretary of Health and Human Services (HHS) Kathleen Sebelius.

The very next day — June 8, 2012 — Melgen (through Vitreo-Retinal Consultants, the company HHS said overbilled the federal government by $9 million) contributed $300,000 to the Senate Majority PAC, a super PAC closely aligned with Senator Sen. Harry Reid (D-NV). Reid was the Majority Leader then and is currently the Minority Leader. Founded in 2011, the super PAC is co-chaired by two former top staffers from Reid’s office. . .

Shortly thereafter, Menendez began pressuring Reid to go over Tavenner’s head and set up a meeting with Sebelius where he could again make the case that his friend really didn’t owe the federal government that $9 million CMS said he had overbilled.

As Breitbart News further reported:

The meeting between Reid, Menendez, Sebelius, and Blum took place on August 2, 2012

At the meeting, Sebelius says Menendez pushed for HHS to drop $9 million overbilling claim against Melgen’s Vitreo-Retinal Consultants. Blum laid out the details to Menendez, who once again protested the conclusions. Reid, for the most part, Sebelius told Politico, was quiet, his role having been primarily to facilitate the meeting.

Through a spokesperson, Menendez denied discussing anything but legislative matters in the August 2 meeting with Sebelius and Reid.

In a carefully parsed phrase, Menendez’s spokesperson Tricia Enright said “the senator did not mention Melgen during their meeting.”

As Breitbart News noted, the “carefully parsed” claim that Senator Menendez did not mention Melgen’s name during the August 2, 2012 meeting “was the same language Menendez’s attorneys used to describe the meeting in a brief they presented to the Court of Appeals for the Third Circuit where they argued that one of Menendez’s aides who arranged the August 2 meeting, Michael Barnard, should not be compelled to answer 50 questions posed by the grand jury investigating Menendez.”

In that brief, “[t]he attorneys claimed that as a legislative aide working only on legislative matters, Barnard could not be compelled to answer questions about the meeting because he legitimately invoked the speech or debate clause of the Constitution.”

Ultimately, Barnard testified before the grand jury.

To date, Menendez’s defense team has not had much success against the Department of Justice’s Koski. Their earlier efforts to have the venue for the trial changed from New Jersey to Washington, D.C. was rejected by the court.

A 2006 graduate of Stanford Law School, prosecutor Koski joined the Department of Justice after clerking for a U.S. Court of Appeals judge. In 2011 he secured a conviction of a Puerto Rico Senator and a businessman on bribery charges.


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