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Menendez Case Gets Tense, Aggressive

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

The corruption indictment against Sen. Bob Menendez of New Jersey is only a few months old, but early court filings pull back the curtain on a legal fight that promises to be bitter, personal and contested at each step.

Weeks after prosecutors laid out a quid-pro-quo bribery scheme, defense lawyers have struck back with allegations of government misconduct, improper inquiries about sex lives and prostitutes, and a warped reading of criminal law. No matter how the case goes, the initial back-and-forth portends a courtroom spectacle and a challenge for a Justice Department that has rarely tangled with such a high-ranking political figure — and has a mixed track record when doing so.

"It's going to be down and dirty. It'll be bare knuckles, I'm sure," said Peter Zeidenberg, a former prosecutor in the Justice Department's vaunted Public Integrity Section, which is handling the case. "From all appearances, it's going to be a very aggressive defense."

The April indictment accuses Menendez of accepting campaign contributions and lavish gifts — including a Paris vacation, golf outings and trips to the Dominican Republic aboard a private jet — from a wealthy Florida eye doctor in exchange for political and business favors. Menendez, a Democrat, and the doctor, Salomon Melgen, were charged together in a 68-page indictment laden with headline-grabbing details about luxury entitlements and political negotiations. They have pleaded not guilty and maintain they are longtime friends who did nothing illegal.

It's not unusual for defendants to seek the dismissal of an indictment against them, and it's possible the judge will turn aside each argument after prosecutors get their chance to respond next month. An earlier defense bid to get the trial moved from Newark to Washington was rejected.

Even so, the breadth and ferocity of the Menendez defense team response has been striking, with more than a dozen motions totaling hundreds of pages that attack all aspects of the prosecution.

The defense lawyers argue that the indictment runs afoul of the Constitution's speech or debate clause, which gives members of Congress immunity for their legislative actions. They accuse investigators of focusing on "salacious" allegations that Menendez was cavorting with escorts in the Dominican Republican, even though those claims were later recanted and were not part of the actual indictment. They say prosecutors intimidated and threatened Menendez's staff and family with their questions.

And they contend that the indictment represents an intentional effort to criminalize routine interactions between a politician and his good friend of more than 20 years.

"Officials frequently sell access by spending time with those who pay to attend fundraising events, and they are quick to answer the phone and lend an ear when major donors call," one of the motions says. "Even presidents have been known to invite major donors to the White House for coffee or dinner, or even to stay the night in the Lincoln bedroom."

One particularly provocative argument that figures to be an ongoing source of contention accuses the government of introducing false testimony into the grand jury process. The motion centers on differing accounts of a pivotal meeting Menendez had with Kathleen Sebelius, at the time the secretary of health and human services, in which prosecutors allege that the senator sought to intervene on Melgen's behalf in a Medicare billing dispute worth millions of dollars.

Though the FBI case agent testified before the grand jury that it was "perfectly clear" that the meeting was all about Melgen, defense lawyers say his own internal notes reveal Sebelius told investigators that "she could not recall what Menendez specifically wanted" or whether Melgen's name came up during the meeting.

The broad-based attack on the indictment is hardly surprising, given Menendez is represented by Abbe Lowell, who is widely regarded as one of the nation's top trial lawyers and who successfully represented former Sen. John Edwards in a campaign finance case brought by the Justice Department.

Lowell has already invoked that case — as well as the disastrous Justice Department prosecution against former Sen. Ted Stevens, derailed by accusations of prosecutorial misconduct — in arguing that the Menendez matter is another case that simply shouldn't have been brought. Those two cases hover in the background of the Menendez prosecution, even though the Public Integrity Section has scored or contributed to several high-profile wins since then.

"I think (prosecutors) recognize that excellent lawyers — you give them an inch and they will take a mile and make you pay for it," said defense lawyer Jonathan Biran, a former Public Integrity Section prosecutor.

Prosecutors will have an opportunity to respond to the motions and perhaps recover whatever momentum was lost in the court of public opinion about the case.

In the meantime, Menendez, who joined the Senate in 2006, has remained active in the chamber — including criticizing the nuclear deal with Iran — even as a case of enormous stakes with potential to upend his career slogs through the court system.

The Menendez defense team is "going to do everything possible to win because basically, it's life — political and otherwise — at stake here," said Scott Fredericksen, a defense lawyer and former Justice Department prosecutor.