The Menendez Indictment- Harry Reid Was at The Same Meeting that Justice Says is Evidence of a Crime.
http://www.wsj.com/articles/the-menendez-indictment-1429138441
Ill-defined federal laws now reach into virtually every sphere of human behavior, and thus prosecutors can destroy almost anyone they choose. The recent indictment of Senator Robert Menendez on 14 counts of corruption and “honest services” fraud is a troubling case in point that deserves more than a little skepticism.
Mr. Menendez is accused of doing government favors for his friend Salomon Melgen, a Palm Beach ophthalmologist and Democratic Party benefactor, in return for vacations and campaign cash. Justice’s quid pro quo tale is often sleazy—Brazilian actresses feature prominently—and Mr. Menendez’s conduct won’t enhance the reputation of Congress. But the quids and quos Justice identifies aren’t illegal on their own—and the indictment never gets to the pro part.
Mr. Menendez is seen, for example, supporting visa applications for Dr. Melgen’s overseas girlfriends and urging the State Department not to undermine a port-security contract that a company Dr. Melgen acquired had signed with the Dominican Republic. But it is not unusual for elected officials to intercede on behalf of constituents and allies. The term for this is representative government.
Dr. Melgen is seen cutting checks to Mr. Menendez’s campaign, the New Jersey Democratic Party and a Super PAC working for the Senator’s 2012 re-election. But then these election-year donations were legal and disclosed, Dr. Melgen supported Democratic causes nationwide, and donors are allowed to give to politicians whose positions are aligned with their interests.
If Dr. Melgen had handed Mr. Menendez a paper bag of cash in return for some abuse of his office, that would be a crime. But Justice presents no evidence—no wiretaps, no smoking-gun emails, nada—that converts this ordinary political advocacy and legitimate political giving into an explicit quid pro quo.
Declining to show the connective tissue between the quid and quo is notable because the Supreme Court narrowed the definition of “honest services” fraud to outright bribery or kickbacks in 2010. Skilling v. U.S. held that the government in “pay to play” cases must prove a specific, tangible, flagrant exchange of an official act for a thing of value.
Since the 1970s, the Court has also held that all donations on some level are meant to influence—imagine that—but bribery requires more than this motive or the awareness of this motive by the politician. As recently as McCutcheon v. FEC, in 2014, the Justices reiterated their 2010 conclusion in Citizens United that “ingratiation and access” as a result of election spending “are not corruption.”
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Perhaps the most damning allegation concerns an injectable macular degeneration therapy called Lucentis. Vials are overfilled in case of spillage, and the leftover is supposed to be discarded to prevent contamination and infections. Dr. Melgen’s eye practice was buying Lucentis and obtaining several doses from this single-use package, and then billing Medicare for the full cost of a fresh vial for every patient.
An outside audit determined that Dr. Melgen used this medicine laundering to overcharge Medicare by $8.9 million in 2007-08. As the dispute wended through administrative appeals, Mr. Menendez took an inordinate interest in Medicare reimbursement policy.
For years, the Senator’s staffers lobbied the Medicare agency to revise the Lucentis coverage policy, which they argued was vague and wasteful. Mr. Menendez even argued the issue in a meeting on Aug. 2, 2012 with then Health and Human Services Secretary Kathleen Sebelius and her top deputies, arranged by and held in the Capitol Hill office of someone the indictment calls “Senator 3.”
Amid this saga, Dr. Melgen made a $300,000 contribution to a Super PAC earmarked for New Jersey on June 1, 2012, and then another 300 grand on Oct. 1. If he was buying government action, he was wasting his money. The indictment notes Ms. Sebelius told Mr. Menendez, and rightly so, that the government “was not going to pay for the same vial of medicine twice.” On Tuesday Dr. Melgen was indicted on 46 counts of Medicare fraud of $190 million. He has pleaded not guilty.
Mr. Menendez’s failed intervention was grubby, but a felony? A lot of Congressmen profess deeply held convictions about Medicare payment policy and importune Medicare officials for reasons other than technocratic logic. They have to do with the hospital or oxygen-tank supplier in their state or district, and sometimes they even vote for laws that benefit such businesses.
Oh, and who is “Senator 3”? None other than Harry Reid, and the Super PAC was Mr. Reid’s campaign fund, Majority PAC. The indictment doesn’t mention it, but Dr. Melgen gave another $100,000 to the PAC in 2012 that was not earmarked for New Jersey. Either the Medicare issue had enough merit for the Senate’s most powerful Democrat to host the sitdown with Ms. Sebelius. Or else it was corruption, and Dr. Melgen bribed Mr. Reid too and he should also be indicted.
If we’re going to slip down this slope, should Democrats who take money from the trial bar and then vote to make it easier to file class actions go to jail? By this standard, Hillary should be rung up for the foreign donations the Clinton Foundation accepted while she was Secretary of State, and Senators should serve time for recommending donors’ kids for the military academies.
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The reality is that money and political speech are inseparable, and the metaphysical questions of why politicians believe what they do and why citizens give them money can’t be resolved by the courts. The Justice Department’s open-ended definition of corruption, applied consistently, would make every politician in America a felon. Justice may be trying to use selective prosecutions to enforce—or intimidate politicians into abiding by—campaign-finance restrictions that the Supreme Court holds unconstitutional.
Justice makes much of the hospitality Dr. Melgen provided at his villa at the Casa de Campo golf and polo resort on the Caribbean, which Mr. Menendez did not acknowledge on his financial disclosure forms. But their families had been friends for nearly two decades—and Mr. Menendez is notable in the millionaire’s club of the Senate for not leveraging his lifetime in politics into personal enrichment. According to those same forms, he has a net worth between $80,003 and $200,000, plus a residence in Union City, New Jersey, valued at $250,001-$500,000.
This is a matter for the Senate ethics committee or New Jersey voters, not a jury. And remember, politicians: You could be next.
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