The Importance of Senator Bob Menendez’s Trial



Date: July 6, 2017

From: Phil Kerpen, American Commitment

To: Interested Parties

RE: Menendez trial and post-conviction strategy


Senator Bob Menendez’s criminal trial starts two months from today on September 6, yet there has been almost no coverage by the media or apparent effort from Republicans to spotlight it.  We need to begin building pressure on Democrats ASAP to force him to resign or be expelled post-conviction to prevent him from stalling until a new (likely Democratic) governor is inaugurated in New Jersey on January 16.  That pressure will either yield an additional Republican senator or do enormous political damage to vulnerable Democrats for allowing a convicted felon to remain in their caucus.

On April 1, 2015 U.S. Senator Robert Menendez and codefendant Salomon Melgen were indicted on 22 felony counts of fraud, bribery, and related offenses.  Menendez delayed the trial by more than two years by arguing that his efforts to intercede on behalf of Melgen with respect to visas for his girlfriends, a Medicare billing fraud investigation, and a Dominican port security contract were all official actions as a Senator that were protected by the Constitution’s speech and debate clause; that argument failed at the district court and at the Third Circuit and the Supreme Court denied cert.

The trial is set to begin on September 6, 2017 and yesterday Judge William Walls denied a last ditch attempt to delay it further.

In the meantime, Melgen has been convicted of 67 counts of Medicare fraud for a scheme that looted $105 million from taxpayers and faces 15 to 20 years in prison if his sentence is not reduced.

I consider it highly likely given the known facts that Menendez will be convicted by the end of September.

The Senate will be deep into appropriations, debt ceiling, tax reform, and possibly still health care.  The gubernatorial election in New Jersey will be just over a month away.

A single additional Republican senator could be the tipping point for multiple key agenda items, giving the Democrats a massive incentive to rally behind Menendez stalling resignation pending appeal or any other possible excuse that could get to inauguration of a new, likely Democratic, governor at noon on January 16, 2018.

We therefore propose an aggressive earned and paid media effort to maximize pressure on Democrats in the event of a conviction including:

  1. Prepping Republican senators to unanimously call before and during the trial for Menendez to resign if he is convicted, and following a conviction to move for expulsion proceedings to begin if he refuses to resign.
  2. Pressuring Democratic senators via friendly press and constituents to take a position on whether Menendez should resign if convicted, using their previous statements from the Ted Stevens conviction and any other relevant research in videos, ads, social media campaigns, etc.  Research and creative production should begin as soon as possible so that the public can be immediately mobilized in key states to bring pressure to bear during the trial, and ratcheted up dramatically following a conviction.
  3. If Menendez is convicted but refuses to resign, the Senate Ethics Committee should act as quickly as possible to recommend expulsion, and if necessary the full Senate should vote on expulsion.  Expulsion requires a two thirds vote so Democrats could unite on party lines to keep a convicted felon in their caucus, but should be forced to actually vote.  The last two times the Ethics Committee recommended expulsionwere of Harrison A. Williams, Jr. (D-NJ)  in 1992 and Robert W. Packwood (R-OR) in 1995 and both resigned before action was taken by the full Senate.  Given the two thirds requirement, in-cycle Democrats would likely be given a pass to vote for expulsion but should be pressured on convincing their colleagues and held responsible not just for their own votes but for the outcome of a vote.

If Menendez’s resignation or removal occurs prior to noon on January 16, 2018 then Chris Christie will be governor and empowered to appoint a new senator to the seat and Republicans will gain a crucial additional Senate vote that could be decisive on key legislation.

If Democrats rally behind a convicted felon to allow him to continue to serve in their Senate caucus for months we should continue to pressure them relentlessly and taint in-cycle Democrats with his criminality while exposing them for hypocrisy with online videos/ads contrasting their calls for Ted Stevens’s resignation with their dodging on Menendez.

Bottom line: we are two months from a 22-count felony trial of a sitting United States Senator and it is somehow a nonstory.  Absent a substantial effort, media indifference will likely allow Democrats to weather a conviction without losing a Senate seat or suffering significant political consequences.  We should not let that happen.