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.
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
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.