The Menendez Fallacy

Published: November 20, 2017

By Jim Lichtman
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What should be done about men who do not directly and blatantly sell the favors of their offices for money and so place themselves within the penalties of the law? How do we deal with those who, under the guise of friendship, accept favors which offend the spirit of the law but do not violate its letter? – Senator J. William Fulbright, Senate Ethics Manual, 2003 edition, page 5

This is the heart of the corruption scandal involving Democratic Senator Robert Menendez.

In 1999, I had the pleasure of meeting New Jersey Senator Bill Bradley. I was in New York for an interview on a local version of NBC’s Today Show for my first book, The Lone Ranger’s Code of The West. Bradley was there to talk about a book of his own, but he spent time chatting with me about my book. I gave him a copy and he promised to return the favor. I kept in touch with his office and sent three more copies of my Ranger book for Bradley’s office staff. I figured he would pass them out and that would be the end of it. No big deal.

Not for Bradley.

A few weeks later, the books were returned with a personal note stating that, while he appreciated the gesture, he takes the ethical standards by which gifts are received seriously. So serious, he said that “this office goes beyond what Senate ethics rules require.”

Which brings me to the other end of the ethical yardstick, current Senator Robert Menendez, who comes from Bradley’s home state. The bribery trial of Menendez ended last week when jurors told the judge, twice, that they were deadlocked.

“We cannot reach a unanimous decision,’’ the jury said in a note just before lunch on Thursday. “Nor are we willing to move away from our strong convictions,” The Washington Post reported (Nov. 16).

“Menendez’s relationship with Dr. Salomon Melgen,” Politico writes (Sept. 5), “a close friend and donor, first came under scrutiny in early 2013 after media reports revealed that the New Jersey Democrat was flying on Melgen’s plane to the doctor’s ‘luxurious’ villa in the Dominican Republic. Menendez did not report any of the flights, a potential violation of Senate rules and federal law. When the press disclosed the reports, Menendez cut Melgen a $58,000 check to cover the cost of the flights, but federal prosecutors say there were additional unreported trips.

“Menendez intervened on Melgen’s behalf with the Department of Health and Human Services to resolve a $9 million Medicare billing dispute, dragging in then-Senate Majority Leader Harry Reid (D-Nev.), HHS Secretary Kathleen Sebelius, and Center for Medicare & Medicaid Services Administrator Marilyn Tavenner.

“Menendez also sought the State Department’s help over a $500 million port security contract Melgen had with the Dominican Republic. Menendez even assisted with visas for several of Melgen’s foreign girlfriends, according to prosecutors.

“Melgen and his family members donated hundreds of thousands of dollars in campaign contributions directly to Menendez’s reelection campaign, as well as to a Democratic super PAC that backed Menendez’s 2012 reelection effort.

“Menendez and Melgen were indicted in April 2015 on a slew of federal corruption charges related to the senator’s alleged acceptance of hundreds of thousands of dollars in improper gifts and campaign contributions as bribes in exchange for using his office to help Melgen. These include eight counts of bribery, three counts of honest services fraud, one count of conspiracy, and one count of violating the Travel Act. Menendez was also charged with one count of making false statements.”

Sounds pretty clear cut to me and probably to you, too. And it very well might have been had the Supreme Court not intervened in another corruption case and overturned what also appeared to be a case of alleged bribery.

Former Virginia Governor Bob McDonnell and his wife were found guilty of public corruption charges after it was discovered that McDonnell accepted more than $135,000 in loans, trips and gifts from Jonnie Williams, St., former CEO of Star Scientific.

What had McDonnell done for Williams?

The governor hosted parties and contacted Virginia officials in order to introduce Williams to individuals who would be helpful to support a drug his company developed as a dietary supplement.

In 2016, the case went before the U.S. Supreme Court, and in a unanimous decision, the court vacated, set aside, McDonnell’s conviction citing that the statutory term “official act” was too broad. The court believed that there needed to be a narrower definition demonstrating an actual quid pro quo.

The prosecution team wanted to retry the case, but the Justice Department decided against it.

While the Supreme Court appeared to settle the matter, in fact, it created a greater ethical cloud by asking prosecutors for more direct evidence of corruption. This appears to be the reason why the jury in the Menendez case was deadlocked.

From an ethical standpoint, however, the rules of the road are clear. Federal Executive Order 12674 of April, 1989 states:

– “Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws, and ethical principles above private gain.”

And if that isn’t clear enough:

– “Employees shall endeavor to avoid any actions creating the appearance (emphasis added) that they are violating the law, or the ethical standards promulgated pursuant to this order.”

While their actions may not have violated the letter of the law, Menendez and McDonnell clearly violated its spirit and thus compromised the public’s trust and their duty to that trust.


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