Sen. Robert Menendez’s defense team has leveled what look like substantial allegations of misconduct against the Justice Department, which is prosecuting him for alleged corruption. According to the Washington Post, Menendez claims, based on internal FBI documents, that the lead DOJ prosecutor in his case allowed an FBI agent falsely to testify to the grand jury that it was “perfectly clear” that in meetings with top DHS officials, Menendez sought favorable treatment for his friend (and co-defendant) Salomon Melgen.
In fact, however, internal FBI memos show that the DHS officials with whom Menendez met, former Secretary Kathleen Sebelius and Medicare chief Marilyn Tavenner, were far from clear about this. The Post reports:
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.”
Yet, according to the Menendez defense team, an FBI agent, under questioning from the lead prosecutor before the grand jury, testified that Sebelius and Tavenner both knew that Menendez’s purpose in the meetings was to advocate for Melgen. The agent also testified that it was “perfectly clear” that the meeting with Sebelius and Tavenner “was all about Dr. Melgen.” If this wasn’t clear to the participants in the meeting, I don’t know how it could have been “perfectly clear” to the FBI agent.
Menendez’s defense team alleges, and documents apparently confirm, that the Justice Department was overzealous in other respects too. According to the Post:
The documents show that investigators called more than a dozen women who had had personal relationships with the men in the past decade and asked them for details. They asked women who dated Melgen about how frequently they had sex with him and when they “became intimate” with him. In one session, a federal prosecutor asked a senior Menendez aide, who had worked for 15 years on his staff, if she had ever had sex with the senator, the filings show.
This sort of questioning strikes me as offensive and abusive. But it pales in comparison to presenting a grand jury with testimony known to be false — if that’s what happened here.
Menendez has moved for the dismissal of the case against him. In addition to allegations of misconduct, he relies on a legal argument, namely that all charges against him depend on proving allegations through evidence that is inadmissible under the Speech or Debate Clause of the Constitution. That Clause provides that Members of Congress:
shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The Speech and Debate Clause must be interpreted broadly to help Menendez in this case. I take no position on whether such an interpretation is proper.
If the case against Menendez isn’t dismissed and the tentative schedule holds, it will go to trial in mid-October.