Will Menendez Walk?

A criminal indictment is a beautiful thing—an austere document, grave and fateful. Who is charged with committing what crimes, and where, and when, and how? What laws have been violated? In it rests the fearsome power of the state. From it may pass a person’s liberty, even life itself. It is transparent in spite of itself: making the argument, it reveals its flaws

The indictment of United States Senator Robert Menendez and Florida ophthalmologist Salomon Melgen charges the two old friends with a conspiracy to commit bribery and “honest services fraud.” It states that they schemed to corruptly influence Senator Menendez’s “official acts” and “defraud and deprive the United States and the citizens of New Jersey of the honest services of a public official.” It sketches attempts to obtain visas for Dr. Melgen girlfriends; attempts to influence the Department of Homeland Security in a contractual matter concerning a Melgen-owned security-screening company; and attempts to gain a favorable ruling from the Department of Health and Human Services in a gigantic Medicare reimbursement dispute—an episode that eventually would land Dr. Melgen in calamity.

Every indictment tells a story. This one is a tale lust, greed and comical incompetence. Whether it’s a story of criminal behavior is another matter. Dr. Melgen showers his old friend with free plane trips, vacation holidays, and large campaign donations at critical moments. Senator Menendez fails to disclose the gifts, setting himself up for a false statements charge. The senator’s office helps the married Dr. Melgen obtain visas for three young girlfriends, all identified as “models.” Embassy officials push back, but eventually the visas are approved. The senator’s office attempts to intervene with the Department of Homeland Security to undermine a security-screening company in the Dominican Republic, a move that would boost the fortunes of Dr. Melgen’s rival company. But it turns out that DHS has no leverage in the matter. In 2009, the senator and his staff step into an $8.9 million Medicare fight, advocating on Dr. Melgen’s behalf in an increasingly tense series of meetings with Department of Health and Human Services officials, working their way up the bureaucratic food chain. The battle goes on for three years. Senator Menendez is rebuffed at every turn. Senator Menendez grows increasingly upset. The Medicare determination is upheld: Dr. Melgen owes $8.9 million.

The Medicare dispute was just the beginning of Dr. Melgen’s troubles. In 2015, he was indicted in a sweeping $90 million Medicare fraud scheme. The drug at the center of part of the scheme, an eye medication called Lucentis, was the same medication in the earlier Medicare dispute. There is no indication that Senator Menendez was involved in the Florida fraud scheme. In April, Dr. Melgen was convicted on all counts. He faces as much as twenty years in prison. Unless maybe he can cut a deal.

The Menendez-Melgen corruption trial opens September 6 in a New Jersey federal court. Does Dr. Melgen have anything to offer the prosecution? Senator Menendez may have some reason to fear Dr. Melgen’s testimony, but he can find solace—and possibly liberty—in last year’s Supreme Court McDonnell decision. In McDonnell, the court narrowed the definition of official acts and honest services fraud. Prosecutors needed to prove a direct “official action.” An “official act” has to be more than “setting up a meeting, talking to another official, or hosting an event,” the court ruled. Yes, Melgen could roll on Menendez. Yes, a host of government officials and aides could testify that the senator sought favorable actions for his friend. But where are the direct official acts that go beyond typical donor services? Based on the indictment, Senator Menendez, a canny and experienced political operator, appears to have stayed outside that realm.

The betting here: Menendez walks. And for that he can thank the United States Supreme Court.

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Micah Morrison is chief investigative reporter for Judicial Watch. Follow him on Twitter @micah_morrison. Tips: [email protected]

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