Updated: Friday, August 18, 2017, 10:09 AM
WASHINGTON — The stakes for Sen. Bob Menendez’s corruption case have grown to national proportions.
More than two years since the Democrat was charged with allegedly trading influence for lavish gifts, his trial begins Tuesday in Newark, N.J. — with major implications for both a four-decade fixture in Garden State politics and the Democratic fight against President Trump’s agenda.
Menendez has vowed he will be vindicated at trial.
But if he is convicted and forced from office, the result could tilt Washington’s political balance by allowing Republicans to claim one more Senate seat as they push to rewrite the tax code and perhaps make another run at health care reform. That’s because Gov. Christie, in his final weeks in office, would have a chance to appoint Menendez’s replacement — almost certainly filling the reliably blue seat with a fellow Republican, at least temporarily.
The significance of that potential shift was illustrated in July, when the GOP’s health-care overhaul was blocked by a single vote.
“It potentially has enormous implications for the entire legislative agenda,” said Phil Kerpen, the head of the conservative lobbying group American Commitment.
The timing of the trial and reality that a new governor will take office in January add even more intrigue. If Menendez is ousted and the heavily favored Democrat Phil Murphy wins this fall’s gubernatorial race, he might be able to call a special election in a bid for Democrats to regain the Senate seat faster — though even that idea is complicated and just one of many scenarios that could follow the trial.
Before any of that maneuvering can play out, the case will test the newly redrawn boundaries of bribery laws and determine the fate of a political powerhouse who has broken barriers for Hispanics at almost every step in his career.
Menendez faces a dozen corruption counts based on accusations that he used his clout on behalf of a friend, Florida eye doctor Salomon Melgen, in exchange for years of gifts, including luxurious vacation accommodations, numerous private flights and more than $750,000 in campaign donations. Among the alleged bribes: repeated stays at Melgen’s Dominican Republic villa and three nights at a five-star Paris hotel, paid for with 649,611 of Melgen’s American Express points.
Opening arguments are set for Sept. 6, and jury selection starts Tuesday.
Melgen has separately been convicted of defrauding Medicare of more than $90 million, but his sentencing has been delayed, raising speculation about whether he might cooperate with investigators while seeking lighter punishment.
Prosecutors, however, face a higher hurdle in trying to convict Menendez now than when they first brought the charges in April 2015.
A 2016 Supreme Court decision laid down new rules for bribery cases and overturned the corruption conviction of former Virginia Gov. Bob McDonnell. The court ruled that informal actions, like making phone calls or setting up meetings, were not “official acts” that could be prosecuted. A bribery case now requires something more concrete.
The effects were illustrated in July, when a federal appeals court threw out the conviction of former New York Assembly Speaker Sheldon Silver, citing the McDonnell ruling.
“The McDonnell case leaves a high hill to climb for the prosecution,” said Kenneth Gross, a political law partner in the Washington office of Skadden Arps.
Menendez cited that case in trying to have his charges dismissed this summer, arguing that his actions don’t meet the Supreme Court standard. U.S. District Judge William Walls rejected the motion in early August, but Menendez’s lawyers could again move to dismiss the case after evidence is presented.
“McDonnell has narrowed what the government can rely on, but it has not made public corruption cases impossible to prosecute,” said Robert Walker, a former federal prosecutor and chief counsel of the Senate Ethics Committee, now at the law firm Wiley Rein. “You can’t rely on any old action taken by a government official anymore. … You’ve got to be more disciplined as a prosecutor now.”
In this case, prosecutors allege that Menendez and his aides pressured federal officials to help Melgen, most prominently urging them to adopt a policy that would help the doctor fight a claim that he overbilled Medicare by nearly $9 million. The senator also urged the Obama administration to take steps that would help Melgen in a business dispute in the Dominican Republic and tried to help the doctor secure visas for overseas girlfriends.
His allies describe Menendez as a pit bull determined to fight the charges — and then win another term in office.
“If he wins [at trial], and he’s sure he will, he’s absolutely, 100 percent running for reelection next year,” said Michael Soliman, a Menendez political adviser.
The son of Cuban immigrants, Menendez is fiercely protective of a legacy that began in a North Jersey tenement and grew when he joined his local school board at age 20, then wore a bulletproof vest while testifying against one of his political mentors in a corruption trial. He rose to one of the top positions in the House and then chairmanship of the Senate Foreign Relations Committee, and he has been a leading Democratic voice on foreign policy and Hispanic issues.
If Menendez is convicted, a furious round of maneuvering would ensue to replace him, with each step bringing new questions.
Would he resign and open the door for a Christie appointment? If not, would his Senate colleagues expel him? Could the process drag out long enough for a new governor to take office, taking the decision out of Christie’s hands?
It takes a two-thirds Senate vote to expel a member, and no one has been kicked out since 1862 — when Indiana’s Jesse Bright was ousted for supporting the Confederacy in the Civil War — though near-certain expulsion has forced others to preemptively resign.
For now, Menendez remains respected in the Democratic caucus, two Democratic Senate aides said.
If Christie does get to choose a replacement, it’s not clear how long his appointee would serve. The GOP governor’s pick could go as late as November 2018 before facing the state’s heavily Democratic electorate in a special election.
A new governor who takes office in January, however, might be able to call a special election sooner — though legal experts and political insiders were unclear on the rules around such a move. (A similar scenario recently played out in Alabama, where a new governor accelerated the special Senate election set by his predecessor.)
In other words, the prospect of a late-year opening could mean chaos, said Mark Sheridan, a longtime New Jersey GOP attorney. “Given the time in the governor’s tenure and Menendez’s seeming willingness to fight,” he said, “it would be a mess.”