Would the Menendez case really make Congress “above the law”?

In the legal dispute between the Justice Department and Senator Robert Menendez over his conduct in office, a key constitutional issue is in play: the right of Congress to be immune from some criminal charges.


Senator Robert Menendez

The Speech or Debate Clause is contained in Article 1, Section 6, of the Constitution, and it reads “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” The clause provides criminal and civil immunity for members of Congress who are undertaking “legislative acts”; after two Supreme Court decisions in 1972, a legislative act was defined as “an act generally done in Congress in relation to the business before it.”

The idea behind the Speech and Debate clause dates back to the Stuart and Tudor monarchies in Great Britain, when the rulers used the law to punish uncooperative Parliament members. The English Bill of Rights of 1689 included a version of the clause.

In 1972, the Supreme Court ruled in Gravel v. United States that “the Clause does not protect criminal conduct that is not part of the ‘due functioning’ of the legislative process. And the Supreme Court has said in several decisions that the Speech and Debate Clause does not protect “political” activities, including services to benefit constituents. The companion case to the Gavel decision, United States v. Brewster, said that evidence against a Congress member could be barred if it became “necessary to inquire into how [the defendant] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.”

Senator Menendez faces a 14-count indictment on public corruption charges that was filed by the Justice Department in April. In July, Menendez’s lawyers filed their own brief, including an argument that some of Menendez’s activities were shielded by the Constitution.

“The Speech or Debate Clause is not a legal technicality; it is not a gift to Congress; and it is not a side door exit for misbehaving legislators,” they said in one filing. “The absolute immunity provided to Members of Congress by the Speech or Debate Clause is very similar to the absolute immunity provided to members of the Judicial and Executive Branches.”

Last week, the Justice Department disputed that argument in a separate filing, citing two situations where Menendez’s defense is trying to apply the Speech and Debate clause.

In one instance, Menendez allegedly interceded to help friend and co-defendant Salomon Melgen settle an $8.9 million Medicare billing dispute. In a second instance, Menendez is accused of helping Melgen by pressuring Executive Branch officials to intercede in a dispute between Melgen and the government of the Dominican Republic over a cargo-inspection contract.

In these situations, the Menendez legal team points to his legislative oversight of Medicare and his sponsorship of cargo-inspection laws.

Menendez’s lawyers argue that his activities involving Melgen were true legislative acts, and not “case work.” “[T]he mere fact that it was Dr. Melgen who called the Senator’s attention to the issue, or the fact that Dr. Melgen could benefit from a prospective change in policy, does not render the activity case work,” they said in their filing. “It is not uncommon for legislators to learn of problems from particular individuals, and seek broader policy changes that would benefit that individual and others.”

The Justice Department claims that Menendez is asserting “legal theories that have been firmly rejected” and “the Speech or Debate Clause does not provide United States Senators with a constitutional right to accept bribes, nor does it provide constitutional protection for attempting to influence the Executive Branch for the benefit of a wealthy benefactor.” The Justice Department says expanding the definition of legislative acts would make members of Congress “super-citizens, immune from criminal responsibility, above the laws they pass, accountable to only each other.”

The case is heading to a federal judge in New Jersey on September 17, where the court will need to decide which, if any, of Menendez’s actions fall under the category of legislative acts.

Randall Eliason, a former Assistant United States Attorney and a law professor at American University, said in June that the Menendez case and the arguments over the Speech and Debate clause could continue for years under the appeals process.

“The bottom line is that the speech or debate clause seems unlikely to derail the Menendez prosecution in the end. But fights over the clause may well delay the trial well into 2016 or beyond, while Menendez, whose current term runs through 2018, continues to represent the Garden State in the United States Senate,” Eliason said on his own blog.

In another Speech and Debate clause case, the U.S. Supreme Court declined to hear an appeal in late June from former House member Rick Renzi despite a plea from the House’s Bipartisan Legal Advisory Group to take Renzi’s case. Renzi cited the Speech and Debate clause in appealing his conviction on corruption charges. A federal appeals court found that prosecutors didn’t violate the Speech and Debate clause by introducing evidence about Renzi’s legislative work during criminal proceedings.

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