U.S. Senator Bob Menendez (D-NJ) has filed a motion to dismiss today in a 49-page court filing, with his attorneys asserting that “all of this conduct is constitutionally immune.”
By John Heinis/Hudson County View
“The government’s accusations in this case—that he sold his office and even sold out his nation—are outrageously false, and indeed distort reality. Every official act the Senator took represented his good-faith policy judgments based solely on appropriate considerations. The Senator stands behind all of his official actions and decisions, and will be proud to defend them at trial,” the memorandum of law in support of a motion to dismiss says.
“Requiring him to do so, however, would offend the Constitution. The Framers believed Members of Congress should be principally accountable to the people, not to other branches of government; legislators must explain their conduct to voters, not to overzealous prosecutors … All of this conduct is constitutionally immune; none of it can form the basis for, or even be included in, a criminal indictment.”
New Jersey’s senior senator has been indicted three times by the U.S. Attorney’s Office for the Southern District of New York since late September, initially accused of accepting cash, gold bars, and a car, among other things, in exchange for his influence.
A superseding indictment in October accused him of acting as a foreign agent to Egypt, with a subsequent superseding indictment last week alleging that he accepted bribes from developer Fred Daibes to help facilitate Qatar dealings.
Today’s memorandum of law, filed by three partners from Paul Hastings LLP: Adam Fee, Avi Weitzman, and Robert Luskin, is the first time Menendez’s legal team has publicly pushed back against the allegations made by federal prosecutors.
Citing the Constitution’s Speech and Debate Clause, the criminal defense team asserts that “legislators must explain their conduct to voters, not to overzealous prosecutors,” continuing that members of Congress are typically only prosecuted for agreeing to exchange legislative action for personal benefits.
“To be sure, some of the government’s allegations steer clear of Speech or Debate Clause immunity; but those allegations improperly focus on the Senator’s unofficial acts, which simply cannot sustain a criminal prosecution,” the court filing states.
“For example, the Indictment alleges that the Senator contacted local state prosecutors to advocate on behalf of certain New Jersey constituents, even though he neither took nor threatened any official action with respect to these state criminal matters, over which he has no authority whatsoever. The government also makes much of the fact that constituents were invited to meetings with foreign dignitaries. And the government goes so far as to impugn the Senator for introducing constituents to investors abroad. None of this is illegal, or even improper.”
Describing the photos in the initial indictment as “made-for-tabloid images” of cash and gold bars relies on a narrative the defense team asserts is based on speculation and innuendo.
“For example, the Indictment uses innocent photographs of meetings with foreign dignitaries to suggest impropriety, even though the meetings were in the Senator’s offices and observed by Senate staff,” the attorneys wrote.
“Even the photographs of gold bars and cash found in the Senator’s home lack incriminating value: The cash reflects decades of documented withdrawals by the Senator from his own bank account, most of which occurred years before any of the alleged bribery payments. And the gold bars in question will be shown to be entirely unrelated to any actions on the part of the Senator.”
In this particular filing, they do not spell out any more details about the gold bars, of which federal prosecutors said some of have Daibes fingerprints on them, though a few passages in the 49 pages are redacted.
The motion also has ample references to the McDonell vs. the United States case, a 2016 ruling involving former Virginia Gov. Robert McDonnell (R) that significantly narrowed the definition of an “official act” performed by a public official in federal bribery statutes.
“In light of the above, any bribery indictment of a Member of Congress must allege that the legislator agreed to a quid pro quo implicating either official action or official duty—but must do so without reference to legislative acts that the Member undertook,” Menendez’s lawyers assert.
“The question here is whether the Indictment manages to navigate those parallel legal constraints. The answer is clear: It does not.”
All of the allegations in the indictments are reviewed and given an explanation.
Whether it be allegedly pressuring U.S. Department of Agriculture officials into giving an exclusive halal meat contract to a company owned by co-defendant Wael Hana, or calling former New Jersey Attorney General Gurbir Grewal about the sentencing of co-defendant Jose Uribe, the criminal defense team says there is nothing anywhere that could be construed as an official act.
The same goes for Menendez supporting Philip Sellinger as the nominee for the U.S. Attorney for New Jersey in hopes of him going easy on Daibes in his federal bank fraud case, again noting no official act transpired.
A similar thought process is outlined when addressing the allegations that Menendez supported the governments of Egypt and Qatar in exchange for gifts for himself and his wife.
“The Indictment never directly alleges an illicit deal; that is, it includes no factual allegations that Senator Menendez ever entered a corrupt bargain with Egypt,” the legal team contends.
” … The newest allegations, relating to Qatar, are shockingly hollow: The only “official act” the Indictment even alludes to was a non-binding resolution, introduced by Senator Lindsey Graham, thanking Qatar for assisting with evacuations of U.S. citizens and Afghan refugees after the Taliban takeover of Afghanistan. Senator Menendez did not introduce, sponsor, or revise the resolution …”
The trio of lawyers also says they will be filing more motions on January 15th, indicting that they will be attacking the indictments for filing in an improper district and separating alleged schemes into single conspiracy counts.
For the moment, Menendez has pleaded not guilty to all charges and has a trial date set for May 6th, about a month before the June 4th primary.
He has not yet indicated whether or not he will seek re-election, with First Lady Tammy Murphy, the wife of Gov. Phil Murphy (D), and U.S. Rep. Andy Kim (D-3), already raising millions for the contest. The filing deadline for the primary is March 25th.
“The case reflects decades of documented withdrawals by the senator from his own bank account, most of which occurred years before any of the alleged bribery payments” ( part of filings from Senator Menendez’ attorneys) How #%*?%#! dumb does the senator and his lawyers think our Government, the prosecuting attorneys, the Judge, and We, the People are?