Judge rejects Bob Menendez’s legislative immunity claims

A federal judge on Thursday denied Sen. Bob Menendez’s claim of legislative immunity from the initial four corruption counts against him.

Menendez had claimed he couldn’t be prosecuted because of the Constitution’s Speech or Debate Clause, which protects members of Congress from prosecution over legislative acts. He also argued that the indictment violated the separation of powers doctrine.

“The Court rejects Menendez’s argument in full, finding that none of the allegations … are protected by the Speech or Debate Clause,” Judge Sidney Stein wrote.

Stein did not rule on Menendez’s arguments that the case should be dismissed based on the 2016 Supreme Court’s decision vacating a corruption conviction against former Virginia Gov. Bob McDonnell, which narrowed the definition of “official acts.”

The trial is scheduled on May 6. Since Menendez filed for the dismissal on Jan. 10, a grand jury has added 12 additional corruption counts against him as well as new corruption allegations.

“While we are reviewing today’s ruling and considering our legal options, the court’s decision makes clear that the jury will have the final say on the government’s allegations,” Menendez lawyer Adam Fee said in a statement. “As we have said since day one, the Indictment is a gross distortion of reality, and we continue to have full confidence that a jury will see the truth: that Senator Menendez did nothing wrong. We look forward to proceeding to trial, where we intend to clear the name of this devoted lifelong public servant.”

Context: Menendez was initially charged with four counts of bribery, fraud and acting as an unregistered foreign agent in an alleged scheme in which he traded official actions for cash, gold bars and a car for his wife Nadine, who is one of several co-defendants.

Among the initial charges was the allegation that Menendez sought to aid Egyptian government and help another co-defendant, Wael Hana, secure a lucrative, exclusive Halal certification contract in exchange for bribes, and seeking to interfere with state and federal prosecutions of two other co-defendants through weighing in on the appointment of New Jersey’s top federal prosecutor and putting pressure on the state’s top prosecutor.

Menendez claimed that the allegation that he sought to influence who became the next U.S. attorney in order to influence a federal criminal case against a co-defendant, developer Fred Daibes, was charging him for a legislative act immune from prosecution.

“While the recommendation by a Senator may play a role in who the President later nominates to be an officer, the recommendation itself is not a constitutionally mandated function of a Senator,” Stein wrote. “Therefore, the Court finds that a Senator’s prenomination activities — including information gathering in determining who the Senator is considering for recommendation to the President plus the recommendation itself — are not legislative acts.”

Stein also rejected the argument that Menendez’s actions on approving foreign to Egypt and disclosing sensitive information to the Egyptian government were also constitutionally protected from prosecution.

“[W]hile Menendez’s performance of the above-described legislative acts concerning the Egyptian Aid Scheme is protected by the Speech or Debate Clause, his promise to do the same is not,” Stein wrote.

History: Menendez was indicted for another alleged corruption scheme in 2015 and also unsuccessfully sought to dismiss those charges based on the Speech or Debate Clause and separation of powers doctrine, which Stein noted. Menendez beat the charges in 2017 thanks to a hung jury.

Politics: One big question hanging over Menendez is whether he will seek reelection. He has declined to say so, but NBC reported Thursday that he is considering running as an independent so he can try raising money for his legal defense. Menendez refused to answer the news outlets questions.

“I don’t have to declare what I am doing. When I do, everybody will know,” Menendez said.

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