Lawfare

Democrats Are Hypocrites on Corruption

Robert Menendez is credibly accused of serious crimes, but his party has never seemed to have a problem with him.

Senator Robert Menendez speaks outside federal court after he was indicted on corruption charges on April 2, 2015 in Newark, New Jersey. (Kena Betancur/Getty Images)
Senator Robert Menendez speaks outside federal court after he was indicted on corruption charges on April 2, 2015 in Newark, New Jersey. (Kena Betancur/Getty Images)

Democratic senators were quick out of the box in response to allegations of sexual misconduct on the part of their colleague, Minnesota Sen. Al Franken. Within hours of allegations by a broadcaster in California that Franken had forced his tongue into her mouth during a practice stage kiss and had taken a picture of himself pretending to grope her breasts while she slept on an airplane, senators were rightly declaring the conduct unacceptable and demanding an Ethics Committee investigation.

Senate Minority Leader Chuck Schumer said, “I hope and expect that the Ethics Committee will fully investigate this troubling incident, as they should with any credible allegation of sexual harassment.” Minority Whip Richard Durbin intoned: “There is never an excuse for this behavior—ever. What Senator Franken did was wrong, and it should be referred to the Ethics Committee for review.”

The same day as the Franken allegations surfaced, however, another Democratic senator, Robert Menendez of New Jersey, got news that the jury in his bribery case had hung, and the judge declared a mistrial. Unlike Franken, the allegations against Menendez were not breaking news. We’ve all known about them for a long time. And what have we heard from these Democratic senators in the two-and-a-half years since Menendez’s indictment about how his conduct was unacceptable and required immediate action?

Crickets — or, rather, what crickets would sound like if they were able to mutter about the presumption of innocence.

It is, of course, a category error to compare sexual assault allegations with criminal bribery charges. One involves the alleged victimization and coercion of a human being; the other does not. Moreover, the allegations against Franken come at a time when politicians rightly feel the need not merely to take seriously sexual misconduct by people in power but to be seen to do so. This week has also saw calls from both sides of the aisle for Alabama’s Senate candidate, Roy Moore, to withdraw from the race following allegations of child molestation and other misconduct.

Bribery and public corruption matters, by contrast, are as old as the day is long. And while they are very serious, there is no special urgency to them today, as opposed to yesterday. So there may be relatively little harm in politicians taking a wait-and-see attitude toward a colleague accused of such misconduct. Indeed, senators of both parties have done so in the past; recall that former Sen. Ted Stevens (R-Alaska) remained in the Senate even after conviction on corruption charges.

But the allegations against Menendez are quite serious; they are certainly more developed as a legal matter than the media reports behind numerous recent harassment and assault allegations. The accusations against Menendez were advanced by the U.S. Department of Justice in the form of a multi-count felony bribery indictment. They were backed by evidence that a judge allowed to go to a jury. They convinced some, though not all, of the jurors beyond a reasonable doubt that criminal activity had occurred.

And what is Menendez accused of? As the New York Times summarized the indictment and the senator’s defense:

Investigators charged that Mr. Menendez abused the power of his office to intervene on behalf of Dr. [Salomon] Melgen, while the doctor used his wealth to essentially keep a senator on retainer.

Throughout the case, lawyers for the men never strayed from a simple theme: they were friends, nothing more, with a relationship that stretched back decades. So close were the two that they referred to each other as “hermano,” Spanish for brother. Any gifts Mr. Menendez received were just an example of Dr. Melgen’s generosity, defense lawyers said. And any actions Mr. Menendez took on behalf of Dr. Melgen, including a Medicare dispute and a port security contract in the Dominican Republic, were part of his interest in broader policy issues that were perhaps sparked by discussions with his friend.

But prosecutors argued that any friendship between people with power and means could be corrupted and that the many private flights, stays at seaside resorts in the Dominican Republic and a luxury hotel in Paris and hundreds of thousands of dollars in political contributions from Dr. Melgen to Mr. Menendez were evidence of illicit behavior.

The government summarized its evidence in a pre-trial brief as follows:

The defendants’ bribery scheme grew in magnitude and breadth. The jury will hear testimony from a variety of individuals who witnessed the scheme unfold, including guests and pilots who were present for the lavish vacations Melgen furnished for Menendez, public officials that Menendez pressured on Melgen’s behalf, and Menendez staffers who helped carry out Menendez’s advocacy. In addition, the jury will see evidence of the defendants’ corrupt bargain in scores of contemporaneous communications between the defendants, their agents, and the officials they endeavored to influence, as well as records spanning everything from flight manifests and hotel bills to credit card statements and Federal Election Commission (FEC) filings.

In other words, for more than two years, Democratic senators have been content to have as a colleague a man whom the government accuses of “hiding a corrupt pact spanning seven years, in which Melgen showered … things of value on the New Jersey Senator … and Menendez reciprocated with official action advancing the South Florida eye doctor’s personal whims and business interests.”

And what have Democratic leaders had to say about Menendez? As recently as September of this year, Sen. Schumer responded to a question about his support for Menendez by saying that he believes in the “presumption of innocence” and that “Sen. Menendez is fighting very hard, and we respect that greatly.”

Sen. Dick Durbin, the minority whip, said on a Sunday talk show that he’s “not going to get into the hypotheticals.”

There are honorable exceptions here: Sen. Amy Klobuchar, Franken’s fellow senator from Minnesota, returned money received from Menendez the day after his indictment in 2015. Sens. Michael Bennet, Joe Donnelly, and Claire McCaskill followed suit in the week that followed. And to be sure, the Senate Ethics Committee has not been idle the subject — just in a kind of suspended animation. The committee issued a statement Thursday that it would “resume its process” on the Menendez allegations, which it launched in 2012 and deferred in 2013 in deference to the Justice Department’s criminal probe.

But by and large, the message from Democratic senators seems to be that sexual misconduct allegations require an immediate response, but even indicted bribery allegations are tolerable unless and until a colleague is actually convicted of them.

The reason for the disparity is only partly that the United States is in a moment of national conversation about sexual harassment and assault; the combination of Donald Trump, Harvey Weinstein, Roger Ailes, Bill O’Reilly, Roy Moore, Kevin Spacey, and any number of other powerful men who have behaved disgustingly make it impossible to be silent about sexual misconduct without subjecting oneself to ridicule as a hypocrite.

It is also because, let’s face it, New Jersey is a state with a Republican governor who — if Menendez were kicked out of the Senate before that governor’s replacement by a Democratic successor — would get to replace Menendez with a Republican. That’s a pretty compelling reason for Democratic senators to believe in the “presumption of innocence” at least until January, when Gov. Chris Christie’s Democratic successor, Phil Murphy, actually takes over. (At that point, look for Menendez to face some quiet pressure — buoyed by polls that show him increasingly unpopular — to not run again.)

A compelling reason in political terms, yes, but it’s not a remotely compelling reason in moral terms. The standard for service in the Senate should be something higher than whether an accused felon can convince a least one juror of twelve to vote for his acquittal.

Being not yet convicted of criminal conduct, certainly being acquitted of it, is a shield against legal consequences at the hands of the government. But it is not a character reference. And it doesn’t make the allegations against Menendez untrue. And it doesn’t relieve his colleagues of the burden of asking whether given the evidence of what he did, he belongs in the Senate. While bribery of this type is pedestrian compared to the planned kidnapping for which former National Security Advisor Michael Flynn is apparently under investigation or the multimillion-dollar money laundering scheme of which Robert Mueller has accused Paul Manafort, it’s not too much to expect the Senate to be clean of people credibly accused of taking bribes in exchange for actions.

So, while we are on the subject of fierce and principled stands against conduct unbecoming of U.S. senators, we have to ask Senate Democrats one question: Is bribery okay for a senatorial colleague as long as jurors aren’t unanimous as to guilt?

Benjamin Wittes is editor in chief of Lawfare.

Susan Hennessey is managing editor of Lawfare.

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