Saturday, August 06, 2016

Bribery case against Senator Menendez can proceed: advocacy for physician friend is not protected under the Speech and Debate clause of the U.S. Constitution

In United States v. Menendez, 15-3459,
http://www2.ca3.uscourts.gov/opinarch/153459p.pdf, 2016 WL 4056037 (3d Cir. July 29, 2016), the Third Circuit rejected Senator Menendez’s appeal that his indictment should be dismissed. The issue was whether advocacy on behalf of two concerns of Menendez’s physician friend, Dr. Melgen, was protected under the Speech and Debate Clause, U.S. Const. Art. 1, §6, cl. 1. The two issues were (1) allegations that Dr. Melgen overbilled the Center for Medicaid and Medicare Services (CMS) $ 8.9 million from 2007 to 2008 and (2) a contract (x-ray technology) dispute between Dr. Melgen and a company in the Dominican Republic. Menendez narrowed the issue to 5 allegedly legislative acts: meetings, calls, and staff communications with high-ranking Executive officials in the Department of Health and Human Services.

The Court explained that the Speech and Debate clause, which states that "members of Congress shall not be questioned in any other Place for any Speech or Debate in either House," extends to legislative acts. First, a court must determine if an act is clearly legislative (i.e., subpoeanaing records for committee hearings) and so protected, or clearly non-legislative (i.e., legitimate constituent services or illegitimate bribe taking) and so not protected. If an act is ambiguous (i.e., a trip by a legislator), then the Court looks to the particular circumstances to analyze content, purpose and motive. The Court rejected the government’s hardline rule that the Speech and Debate clause does not protect legislative attempts to influence the Executive, which would place legitimate policy-based efforts under the specter of indictment.

Notwithstanding their constitutional relevance, the historical facts found by the District Court were reviewed for clear error with the burden on Menendez. The Third Circuit found clear error was not evident: the disputed acts basically amounted to lobbying on behalf of a particular party and so non-legislative and not protected. The Court rejected the factual challenges based on (1) the actual content of the meetings, (2) the preparation for the meetings, (3) Dr. Melgen’s interest in following up with Menendez after the meetings, and (4) rejecting Menendez’s narrow lens when reciting the facts. Moreover, Menendez’s staff’s request for information from the Executive which would be protected was too bound up in specific advocacy, and so the entire communication was analyzed, and found to be non-legislative.

The Court also rejected a separation-of-powers and speech-and debate-clause challenge that violation of a Senate financial disclosure rule could only be punishable in the Senate, not by the Executive under 18 U.S.C. §1001. The Court addressed the venue issue (D.C., not N.J., was the proper venue) with regard to the financial disclosure under mandamus review and denied it because the allegations were sufficient that material facts were concealed in N.J. before the document was filed in D.C.

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