Senator Menendez Refuses To Step Down — Again

The burden in this case, like in every criminal trial, lies solely on the prosecution.

AP/Wayne Parry
Senator Menendez at Toms River, New Jersey on October 28, 2019. AP/Wayne Parry

Senator Menendez is entirely within his rights in refusing to resign in the face of the latest indictment in respect of bribery. He declared at a press conference today that he will stick with his post in the upper chamber and expects to be cleared and to serve out his term. “Those who rushed to judgment, you have done so based on a limited set of facts framed by the prosecution to be as salacious as possible,” the senator said. “Remember, prosecutors get it wrong.”

That last bit was a dig at the United States Justice Department, which in 2015 brought against the Garden State’s senior senator charges that failed to convince a jury. The judge then dismissed the most serious charges, and a humiliated Justice Department declined to retry what was left of the case. It was only one dismaying failure in what’s becoming a shocking list of cases in which the DOJ turned out to have less than had met the ear.

We don’t mind confessing that we are against bribery in all its forms. This is particularly so when it involves the sale of one’s office or, in this case, elected position. One of the most famous statements of the Sun’s principles — by Thomas Dewart when, in 1950, he sold the Sun to Roy Howard — described what we’re against as “rascality.” We favor honest government and equality under law and, among other things, due process.

The thing to remember is that 100 percent of the burden in this — or any criminal case — rests solely with the prosecution. Plenty of precedent obtains for Mr. Menendez to hold out for due process, which can’t be taken for granted. Feature Senator Stevens, who — according to the National Registry of Exonerations — in October 2008 was convicted on seven counts of failure to report gifts in connection with $250,000 in renovations of his home.

The prosecution, according to the National Registry of Exonerations’ narrative, wheeled out as a star witness an oil service company executive who had previously pled guilty in an unrelated case of bribing state legislators. His sentencing in that case was deferred until he testified against Stevens, who was convicted a few days before a re-election bid. With the verdict just brought in against him, Stevens lost.

Just a few weeks later, an FBI agent came forward to swear, the Exonerations Registry relates, that the prosecutors and “other FBI agents” had hidden exculpatory evidence. One piece of evidence was a memo from the key prosecution witness “saying that Stevens probably would have paid for the goods and services if asked.” Says the registry: “The affidavit also contended that a female FBI agent had an inappropriate relationship with the witness.”

Mr. Menendez could also keep in mind a former Virginia governor, Robert McDonnell. Under the aegis of one Jack Smith, the DOJ came down on Mr. McDonnell in a blaze of self-righteousness, threatening him — and his wife — with up to 20 years in jail for alleged bribery. The couple had used their “official position to enrich themselves,” DOJ insisted. A unanimous Supreme Court reversed their conviction, for lack of a quid quo pro.

While there’s no guarantee Mr. Menendez’s case will turn out similarly, the justices, when the McDonnell case reached them, professed to be startled by how weak the federal prosecutors’ case was. The attempt to jail the McDonnells for what proved to be the give and take of politics “puts at risk behavior that is common,” Justice Stephen G. Breyer said, and “a recipe for giving” the DOJ “and prosecutors enormous power over elected officials.”

It’s not our purpose here to suggest that Mr. Menendez is innocent. The evidence that prosecutors claim to have adduced includes hundreds of thousands of dollars tucked into his clothing and gold bars that it alleges were part of the payoff, not to mention a Mercedes car. Our purpose is to suggest merely that the Garden State solon has the right to hold out for a verdict before he steps down from the Senate. We wish him the best of luck.


The New York Sun

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