Appeals court won't toss Menendez's indictment

A federal appeals court panel said Friday that Sen. Bob Menendez should be tried before a Newark jury on corruption charges, but that is not likely to happen any time soon.

Menendez’s top lawyer, Abbe Lowell, said he would ask the full 3rd Circuit Court of Appeals to hear the case and, if necessary, appeal to the U.S. Supreme Court, which last month threw out the bribery conviction of a former Virginia governor in a ruling that could affect Menendez’s case.

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“Once all the facts are heard, the senator remains confident that he will be vindicated,” Lowell said in a statement.

In a victory for federal prosecutors, a three-judge panel from the 3rd Circuit on Friday rejected an attempt to dismiss key parts of the April 2015 indictment against Menendez. The 59-year-old senator from Paramus is accused of taking bribes to use his office to promote the business interests of codefendant Salomon Melgen, an eye specialist who is also facing separate charges of Medicare fraud in his home state of Florida.

The indictment, handed up in Newark, said Menendez received flights on Melgen’s private plane, lodging in a luxury Paris hotel and at Melgen’s home at a Dominican Republic resort, a round of golf in Florida and more than $700,000 in contributions to committees that helped Menendez get re-elected in 2012.

In exchange, Menendez is accused of trying to pressure Obama administration officials about a $9 million Medicare billing dispute Melgen had with the government, and about cargo security in the Dominican Republic, where a company Melgen owned had a contract to screen containers bound for the United States.

Lowell had argued the government could not use those actions to prove its case, citing the “speech or debate” clause in the Constitution that gives members of Congress broad immunity from answering questions in court about legislative acts.

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A relic of the English Parliament, which sought protection from being punished for crossing the king, the clause bars the executive or judicial branches from questioning anything said during “speech or debate” in Congress. Rulings by the Supreme Court, including some involving former New Jersey congressmen accused of corruption, have found the clause provides immunity for most legislative acts, and not just speeches.

The Justice Department, whose case would be significantly weakened if it could not tell jurors what Menendez allegedly did in exchange for Melgen’s gifts, had argued that Menendez was trying to broaden the constitutional protection to the point that members of Congress would be “super citizens.”

The three-judge panel, in a ruling written by Judge Thomas Ambro, decided that taking the approach Lowell had suggested “would immunize many illegal acts that have only dubious ties to the legislative process.”

What Menendez was doing for Melgen was “essentially lobbying on behalf of a particular party” and not gathering information to write a bill, deciding whether to confirm an appointee or conducting oversight of the executive branch, the ruling said.

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But Menendez may have better luck before a jury, the court found. The ruling noted that evidence gathered by the Justice Department shows that while Menendez and his staff had meetings and received talking points from Melgen’s lobbyist before he approached the administration, there was also evidence he kept his focus at those meetings on policy and not specifically on Melgen’s case.

That might provide reasonable doubt for a jury, but it did not meet the standard for the appeals court to strike parts of the indictment, Ambro wrote.

Lowell called the ruling “just another step in the legal process” and said the appeals court could only throw out the indictment if the trial judge, U.S. District Judge William Walls, had made “clear error” in upholding it.

The Supreme Court “is supposed to resolve constitutional questions between the executive and legislative branches.” Lowell said. And he signaled the senator is hoping the high court would look favorably on his case because of a unanimous ruling last month that threw out the bribery conviction of former Virginia Gov. Bob McDonnell.

The court said that while McDonnell and his wife received cash and gifts from a wealthy businessman, the government did not prove McDonnell took official action in exchange for the gifts.

“The Supreme Court’s recent decision in the Governor McDonnell case also raises equally important issues with this case that were not examined here and will now have to be addressed,” Lowell said.

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In an unrelated decision, Melgen’s indictment in a Florida for Medicare fraud was also upheld this week. Following that ruling, however, a federal magistrate said there was a good enough chance of Melgen being acquitted on the corruption charges in New Jersey that he was allowed to tap $2 million of the $18 million he had posted as bond to pay his lawyers, the Palm Beach Post reported.

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Herb Jackson: jackson@northjersey.com