Former President Donald Trump commuted the sentence of Democrat megadonor Dr. Salomon Melgen as part of more than 100 grants of clemency announced in the final hours of his administration early Wednesday morning.
In a separate case, Melgen and Sen. Bob Menendez (D-NJ) were indicted together on charges of public corruption in April 2015. That case ended in a mistrial in November 2018, and in January 2019 the Department of Justice dismissed all charges against both men.
Melgen has served about four years of his sentence, and “can be released as early as Wednesday from the Federal Correctional Institution in Miami,” the Miami Herald reported early Wednesday morning.
The Sun Sentinel reported on the statement from the Trump White House about the granting of clemency to Melgen.
“Dr. Melgen was convicted of healthcare fraud and false statements. Numerous patients and friends testify to his generosity in treating all patients, especially those unable to pay or unable to afford healthcare insurance,” according to a White House statement issued Tuesday.
Melgen’s commutation was supported by Sen. Menendez and Rep. Mario Diaz-Balart, R-Fla., among others, according to the release.
A presidential commutation means that a person serving is prison sentence for a crime is granted their freedom, but it does not mean that the person’s crime is expunged. In contrast, a presidential pardon means that the crime itself is expunged from the person’s record, as if it never existed.
Pardons can be granted to those who have been convicted of a crime and have already served their complete sentence and been released, to those who have been convicted of crimes and are still serving a sentence (and are freed from incarceration when pardoned), those who have been charged with a crime and have not yet been tried, or those who may be charged with a crime.
Breitbart News first reported on Dr. Melgen in 2013 when the FBI raided his medical offices in Florida:
Earlier this year, the FBI raided the medical offices of Dr. Salomon Melgen, seizing documents to investigate suspicions that he was overbilling Medicare. The Miami Herald reported, earlier this month, that one of the red flags that launched the Department of Health and Human Services Center for Medicare and Medicaid Services (“CMS”) investigation was Melgen’s alleged practice of dividing a single vial of the expensive liquid drug Lucentis into four doses and billing Medicare for each dose. A vial is intended by the manufacturer to generate a single dose in the treatment of macular degeneration. A medical expert told Breitbart News that Melgen’s alleged practice is highly unusual.
Dr. Michael Repka, Medical Director of Governmental Affairs of the American Academy of Opthalmology, told Breitbart News in an exclusive interview “it doesn’t seem possible you could get four doses [of Lucentis] out of a single vial. I would think that is hard to understand.” Repka noted that he was not commenting on the Melgen investigation, but was providing general information about standard practices among opthalmologists for the use of Lucentis in the treatment of macular degeneration.
Melgen’s friendship with and substantial political donations to Senator Robert Menendez (D-NJ) are at the center of an ever expanding political scandal that has prompted the New York Times to call for Menendez’s removal from the Chairmanship of the Senate Foreign Relations Committee.
Earlier this month, Menendez admitted that he spoke directly to CMS in 2009 and 2012 about Melgen’s case. “The bottom line is, we raised concerns with CMS over policy and over ambiguities that are difficult for medical providers to understand and to seek a clarification of that and to make sure, in doing so, providers would understand how to attain themselves,” Menendez told the Associated Press. But an official familiar with the CMS investigation said that on both occasions Senator Menendez urged CMS officials “to change what he called an unfair payment policy that had cost his friend Melgen $8.9 million.”
Menendez’s statement is very similar to the position taken by Melgen’s attorneys, who deny their client has done anything wrong. According to the Herald, they claim Melgen simply “differed with the program over its reimbursement policy for Lucentis.”
But the CMS reimbursement policy for the use of Lucentis is straightforward and not especially prone to misunderstanding on the part of opthalmologists, who use two drugs for the treatment of macular degeneration. Lucentis, which costs doctors $2,000 per vial, is FDA approved for use in treatment of macular degeneration. Avastin, which costs doctors a mere $50 per vial, is FDA approved, but not yet for the treatment of macular degeneration. Both drugs are manufactured by biotech giant Genentech.
Melgen and Sen. Menendez were indicted by the Department of Justice on public corruption charges on April 1, 2015, and Melgen was indicted on Medicare fraud charges on April 14, 2015. Though the Medicare fraud indictment of Melgen came after the public corruption indictment of both men, Melgen’s fraud trial was scheduled and conducted in a Florida federal court prior to the public corruption trial, which was held in a New Jersey federal court.
The Miami Herald reported the details of Melgen’s Medicare fraud trial and April 2017 conviction:
In April 2017, Melgen was convicted of stealing $73 million from Medicare by persuading elderly patients to undergo excruciating tests and treatments they didn’t need for diseases they didn’t have. His defense attorneys, Kirk Ogrosky and Matthew Menchel, lost an appeal of his conviction last July and were proceeding with a final bid for relief before the U.S. Supreme Court.
Melgen was found guilty of 67 counts, including healthcare fraud, submitting false claims and falsifying records in patients’ files. Prosecutors showed that between 2008 and 2013, he became the nation’s highest-paid Medicare doctor, building his practice by giving elderly patients unnecessary eye injections and laser blasts on their retinas.
In addition to prison time, Melgen was also ordered to pay $42.6 million in restitution to Medicare.
Department of Justice prosecutors originally anticipated that Melgen’s conviction on Medicare fraud charges would aid their subsequent prosecution of Sen. Menendez, who, along with Melgen, was tried in November 2017 on public corruption charges, but that expectation never materialized.
Shortly after his 2015 indictment, Sen. Menendez hired high powered Washington attorney Abbe Lowell, who immediately went on the offensive, as Breitbart News reported:
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.” . . .
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.”
During the trial in the fall of 2017, Lowell continued his aggressive defense of Menendez, as Breitbart News reported:
Melgen’s sentencing hearing on the 67 felony counts of Medicare fraud–estimated to be as much as $105 million–was originally scheduled for August, but was suddenly and unexpectedly delayed until after the public corruption trial.
That delay sparked speculation that Melgen and his attorneys may be seeking to cut a deal with federal prosecutors to lessen his sentence in the Medicare fraud convictions in return for testimony against Senator Menendez in the upcoming public corruption trial. Under standard sentencing procedures, the 63-year-old Melgen currently faces anywhere from 25 years to life in prison.
Menendez’s defense attorney, Abbe Lowell, is one of the most respected and experienced white collar crime defense attorneys in the country.
A partner at the prestigious law firm of Norton Rose Fulbright, he successfully represented former Senator John Edwards (D-NC), a candidate for the Democratic nomination for President in 2004 and 2008 who was “accused of soliciting nearly $1 million from wealthy backers to finance a cover up of his illicit affair and illegitimate child during his 2008 bid for the White House.” Edwards was found not guilty by a North Carolina jury in 2012.
Most recently, Lowell was hired by President Trump’s son-in-law and White House adviser Jared Kushner to represent him in the ongoing Russian probe.
In November 2017, the federal judge hearing the public corruption trial against Menendez and Melgen declared a mistrial after jurors said they were deadlocked, and in January 2018 the Department of Justice dismissed all charges against both men.
Dr. Melgen is about to become a free man, and Sen. Menendez, who was re-elected to the U.S. Senate comfortably in November 2018, is the incoming chairman of the Senate Foreign Relations Committee.