Okay. At this point, Save Jerseyans? After the state rested, and the federal judge has indicated that he’s considering throwing out MOST of the federal criminal charges facing U.S. Senator Bob Menendez (D, N.J.) this upcoming Monday?
Democrats across New Jersey (and especially down in South Jersey), as well as those in Washington, D.C. who care deeply about regaining control of the U.S. Senate, are privately pulling for the prosecution.
Surprised? Don’t be. Start paying attention.
Their reason is 100% political. Of course.
The Reader’s Digest explanation: this week, Judge Walls cited the U.S. Supreme Court’s famous and recent decision to dismiss the corruption conviction of former Virginia Governor Bob McDonnell; that decision narrowed the definition of “official acts” to a point where most of Menendez’s alleged behavior, while sleazy, may no longer be criminal. We could go on and on about the legal issues at play here but that’s a post for another time.
Judge Walls also indicated on Wednesday that, even if the bribery charges don’t survive the defense’s motion, he’s planning to send the final count of the original indictment (“false statements”) to the jury for deliberation. Jurors will thereafter need to decide whether Menendez “knowingly and willfully” filled out his required U.S. Senate financial disclosure form(s) in a way that, at the time, “falsifies, conceals, or covers up by any trick, scheme, or device a material fact.” The alleged disclosure omissions concern private flights which the prosecution says Menendez received as gifts from Melgen.
So it’s now a very real possibility that Menendez might end up being convicted of violating 18 U.S. Code § 1001 (see above) and nothing else. It’s still a felony to be sure, but it’s not clear whether it’ll be enough to end his U.S. Senate career… at least not immediately. Having been convicted of a felony, or even being imprisoned for one, does not automatically disqualify a person from serving in Congress. Way back in 1798? Rep. Matthew Lyon ran for Congress from prison and won the contest. Ted Stevens continued to serve Alaska in the U.S. Senate after his felony conviction which was later overturned (but it didn’t stop him from losing his seat in the interim).
Removing a Senator (even a felon) isn’t easy. According to Article I, Section 5, of the United States Constitution, “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” Anyone monitoring the current Republican struggles over health care and federal tax reform knows that getting 50 or more senators to agree on ANYTHING is hard.
Getting two-thirds? Damn near impossible.
History may also serve as an obstacle of sorts. Since 1789, the U.S. Senate has expelled only 15 members. 14 of those expelled members were kicked out for supporting the Confederacy during the Civil War. Other members were ALMOST expelled but, critically for our discussion, the Senate found that the member in question either wasn’t guilty or, for procedural/political reasons, the Senate did not act prior to the member leaving office. If he’s convicted, Menendez would join a small list of only four other U.S. Senators who have been convicted of crimes while still in office: Joseph R. Burton (1905), John Hipple Mitchell (1905), Truman H. Newberry (1920), and Harrison Williams (1981).
Newberry had his conviction overturned. Burton and Newberry resigned before the Senate could expel them. Williams should sound familiar because he naturally represented New Jersey; caught up in the infamous 1980s Abscam scandal, the Westfield resident was indicted on 9 corruption-related counts on October 30, 1980 and was convicted the following May. He didn’t ultimately resign from the Senate until almost a full year AFTER conviction on March 11, 1982 on the eve of expulsion.
Democrats dread a scenario where Menendez is (1) convicted of only the false statements charge, (2) refuses to resign and decides to seek reelection in 2018, and (3) the GOP-controlled Senate fails to remove him.
That scenario guarantees that a hobbled Democrat incumbent – whom only 28% of New Jersey voters want to run again EVEN if he’s acquitted – will be on the ballot during a cycle that, because of the U.S. Senate map, is expected to be challenging for Democrats. Menendez’s dip in public popularity runs counter to his power within the Democrat establishment. He can more than likely win the nomination UNLESS the U.S. Senate denies him the opportunity to continue serving.
“Senator Menendez has always had tremendous support from the Democratic Party, and I believe if he’s acquitted, he still would have support. But I would have to say now, in my opinion, he has tremendous support,” Democratic State Chairman John Currie tellingly told Politico.
Consequently, Menendez’s refusal to go could put an otherwise safe Democrat seat into contention.
If you’re Mitch McConnell? You might want to let a convicted Menendez face the voters instead of an expulsion vote UNLESS expulsion can be accomplished in time for Chris Christie to appoint a Republican who (1) isn’t named Christie and (2) represents a strong general election contender in his or her own right. Those are big “ifs” since the last senator Christie appointed declined to seek reelection.
If you’re Chuck Schumer? You might find yourself in an awkward position where you’re tempted to whip votes FOR the expulsion of our own members (note: Schumer has been very supportive of Menendez to date). Or hoping that New Jersey Democrats can pull off another Torricelli maneuver.
Keep all of this in mind if Menendez gets off relatively easy, folks. Surviving federal prosecution unscathed (or largely unscathed) might prove to be a Pyrrhic victory for both Menendez and his party.
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