Bob Menendez, Al Franken, and the presumption of innocence

Bob and Nadine Menendez in Egypt in October 2021 (via U.S. Attorney's Office, Southern District of New York)

"Bob Menendez has been a dedicated public servant and is always fighting hard for the people of New Jersey. He has a right to due process and a fair trial." 

That was the response of Senate Majority Leader Chuck Schumer (D-NY) to the indictment of Senator Bob Menendez (D-NJ) on Friday. Federal prosecutors accused Menendez and his wife, Nadine, of accepting hundreds of thousands of dollars in bribes in exchange for using his official position to benefit the Government of Egypt and others. Schumer's description of Menendez as a "dedicated public servant" who is "always fighting hard for the people of New Jersey" is belied by the granular evidence of brazen corruption laid out by prosecutors in the indictment. 

As Chairman of the Senate Foreign Relations Committee, Menendez had the power to approve or place holds on "foreign military financing and sales of military equipment to Egypt." In exchange for approving the sale of military equipment to Egypt, the indictment alleges, a New Jersey businessman with close ties to Egyptian officials, Wael Hana, agreed to pay Nadine Menendez though his company. 

According to the indictment, Bob Menendez would text Nadine advanced details of official actions approving arms sales. Nadine would then forward these messages to Hana, who would pass the information to the Egyptian government. 

Hana's company, IS EG Halal, provided certification that food exports from the United States to Egypt were "compliant with halal standards." Although Hana had no experience in halal certification, this became a lucrative enterprise when Egypt granted IS EG Halal a monopoly over Halal certification in 2019. When "the USDA contacted the Government of Egypt and sought reconsideration of its grant of monopoly rights to IS EG Halal," Menendez intervened and "called a high-level USDA official and insisted that the USDA stop opposing IS EG Halal’s status as sole halal certifier." 

Hana and another individual allegedly involved in the scheme, Joe Uribe, also agreed to buy Nadine Menendez a $60,000 Mercedes in exchange for Bob Menendez's help in resolving a fraud investigation of one of Uribe's associates. According to the indictment, Bob Menendez "contacted a senior state prosecutor at the [New Jersey Attorney General]’s Office who supervised the prosecution" at least twice and "attempted to pressure [the prosecutor] to resolve the prosecution more favorably to the defendant."

There are several other allegations in the indictment of instances where Menendez used his position as a powerful U.S. Senator to secure bribes. In the end, authorities found over $480,000 in cash at Bob and Nadine Menendez's house, much of which was hidden in closets and clothing — including a jacket featuring Bob Menendez's name and the U.S. Senate seal. 

Authorities also recovered over $100,000 in gold bars. 

Despite the prodigious evidence of criminal conduct presented in the indictment, Schumer is correct that Bob Menendez and the other defendants have a "right to due process and a fair trial." Menendez also has a right to the legal presumption of innocence. But Menendez will be afforded due process in a court of law. There is not, however, a Constitutional right to be a member of the U.S. Senate. Whether Menendez should retain his Senate seat is a political matter, not a legal one. 

The issue centers around the distinction between legal innocence and actual innocence. Absent a plea deal, a jury will decide whether Menendez broke the law. But a jury will not decide whether Menendez is "innocent." It will decide whether he is legally guilty, meaning the prosecutors proved their case beyond a reasonable doubt, or legally not guilty. 

The Constitution contemplates a higher standard for elected officials than avoiding criminal convictions. The U.S. Senate is empowered to expel any member "for disorderly behavior" — it requires a two-thirds vote. 

As a practical matter, the political calendar does not afford Schumer and other Senate Democrats the luxury of waiting until the conclusion of a trial before making a judgment on Menendez's conduct. Menendez is facing reelection next year, and the New Jersey primary will be held in June 2024, which is likely before Menendez's case goes to trial. Democrats will have to decide whether to support Menendez's reelection campaign or back a different candidate. 

High-ranking elected Democrats in New Jersey, including the Governor, have called on Menendez to resign. Most of the New Jersey Democrats in the U.S. House are also calling for his resignation. But thus far, most Senate Democrats — the people with the power to remove Menendez — have decided to stay silent. Only Senator John Fetterman (D-PA) has called on Menendez to resign. 

The case of Al Franken

In 2017, Leeann Tweeden, a conservative radio talk show host, accused then-Senator Al Franken (D-MN) of "having forced an unwanted kiss on her during a 2006 U.S.O. tour." Over the next couple of weeks, seven other women accused Franken of inappropriate touching or kissing. About half of Franken's accusers remain anonymous. There were no criminal charges or any investigation of Franken's alleged conduct. 

Nevertheless, Schumer called on Franken to resign immediately, urging him not to wait for the "due process" of an Ethics Committee investigation:

Senator Franken should resign. I consider Senator Franken a dear friend and greatly respect his accomplishments, but he has a higher obligation to his constituents and the Senate, and he should step down immediately.

Schumer was joined by more than 30 of his Democratic colleagues, many of whom are in the Senate today, who also called on Franken to resign. "As national leaders, we must hold ourselves to a higher standard," Senator Tammy Duckworth (D-IL) said. "[W]e must lead by example to ensure every person is treated with the dignity and respect they deserve. This isn’t about Democrats or Republicans, it’s about our society." John Tester (D-MT) said Franken should resign because "[e]lected officials must be held to a high standard."

But Schumer, Duckworth, Tester, and the dozens of other Democrats who called for Franken to resign prior to any investigation have not held Menendez to the same standard. 

For example, in 2017, Senator Dick Durbin (D-IL) said Franken "should resign from the Senate." Asked on Sunday if Menendez should resign, Durbin said Menendez was entitled to the "presumption of innocence." Durbin said Menendez should decide whether or not resignation was appropriate. 

Unlike Franken, Menendez was a member of Senate leadership and, as former chair of the Democratic Senatorial Campaign Committee, Menendez has personally assisted the campaigns of many Senators, including by raising money. 

Menendez and Dr. Melgen

This is not the first time Menendez has been charged with public corruption. He was also indicted in 2015 "in connection with a bribery scheme in which Menendez allegedly accepted gifts" from Florida ophthalmologist Salomon Melgen "in exchange for using the power of his Senate office to benefit Melgen’s financial and personal interests." There was a three-month trial that ended in a hung jury, which means they were unable to come to a consensus about Menendez's legal guilt. Ultimately, some of the charges were dismissed by a judge and the government decided not to pursue a new trial on the charges that remained.

In a statement, Menendez cited the Melgen trial as evidence he would be vindicated again:

I have been falsely accused before because I refused to back down to the powers that be and the people of New Jersey were able to see through the smoke and mirrors and recognize I was innocent.

The government was not able to establish legal guilt beyond a reasonable doubt with all members of the jury before. But was the trial proof that Menendez was actually innocent? Not according to the Senate Ethics Committee. After the conclusion of Menendez's trial, the Committee conducted its own investigation of Menendez's conduct. Here was the Committee's conclusion:

The Committee has found that over a six-year period you knowingly and repeatedly accepted gifts of significant value from Dr. Melgen without obtaining required Committee approval, and that you failed to publicly disclose certain gifts as required by Senate Rule and federal law. Additionally, while accepting these gifts, you used your position as a Member of the Senate to advance Dr. Melgen's personal and business interests. The Committee has determined that this conduct violated Senate Rules, federal law, and applicable standards of conduct. 

Despite this stark conclusion, the Committee issued a mild punishment. Menendez was required to "repay the fair market value of all impermissible gifts not already repaid," and the Committee issued a "Public Letter of Admonition." 

According to the indictment this week, by the time the Committee issued its letter in April 2018, Menendez had already begun his next scheme to abuse his official position for cash, gold, and luxury cars. How much longer will Menendez's Senate colleagues treat him with kid gloves?