Appeals court appears skeptical of former Sen. Bob Menendez’s conviction

Por Erica Orden — POLITICO – TOP Stories

A panel of three judges on the 2nd Circuit Court of Appeals appeared open to arguments that the actions by former New Jersey Sen. Bob Menendez which led to his criminal convictions were protected legislative activity.

Menendez’s attorney, former U.S. Solicitor General Noel Francisco, focused during oral arguments Thursday on the former Democratic senator’s effort to install a U.S. attorney who prosecutors said would have been favorable to a businessman who was allegedly paying bribes to Menendez.

Francisco argued that Menendez’s moves triggered the Constitution’s “speech or debate” protections, which grant a form of immunity to lawmakers that is mostly impenetrable in investigations relating to the official duties of lawmakers, their aides or other congressional officials. But a federal prosecutor argued Menendez’s actions shouldn’t be considered protected legislative activity because they were not “integral to constitutional advice.”

In 2024, a jury found Menendez guilty on 16 counts, including bribery, acting as a foreign agent for Egypt, obstruction of justice, extortion and conspiring to commit those crimes along with a pair of businesspeople. He is currently serving an 11-year-sentence at the Federal Correctional Institution Schuylkill in Minersville, Pennsylvania.

Thursday’s panel included Judges Dennis Jacobs, a George H.W. Bush appointee; Barrington Parker, a George W. Bush appointee; and Beth Robinson, a Joe Biden appointee.

Francisco also drew the judges’ attention to the issue of what counts as an “official act” under the standard set by a Supreme Court ruling that overturned former Virginia Gov. Bob McDonnell’s conviction. The high court found that “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”

Menendez’s meetings and calls with then-New Jersey Attorney General Gurbir Grewal and Ted McKinney, then a senior official at USDA, didn’t rise to the level of official acts under the standard set by McDonnell and another public-corruption case, that against former New York state Assembly Speaker Sheldon Silver, Francisco argued.

“McDonnell and Silver draw a clear line between support on the one hand and pressure on the other, and that line was critical in this case because our view is that there was actually no evidence that Senator Menendez pressured Attorney General Grewal or Undersecretary McKinney to do anything,” Francisco said.

Parker challenged that, saying: “When the senator says, ‘This is something I’m very concerned about. This is something that’s very, very important to me,’ anybody who’s got a shot at an important position knows exactly what the senator is saying.”

“If the line between merely unattractive and actual criminal conduct is blurred, the court must take pains to explain the difference to the jury,” Francisco said. “Here, the whole issue turned on, ‘What does “pressure” mean?’ We asked for an instruction. He refused it.”

The judges appeared critical of some of the arguments made by Assistant U.S. Attorney Paul Monteleoni.

He argued that Menendez’s actions concerning the U.S. attorney appointment shouldn’t be considered a protected legislative act, telling the panel that “the text of the Constitution, the Supreme Court’s precedents, the historical record, and the interpretation of actually all three branches of government overwhelmingly prove that the Senate’s power to advise and consent only applies once the president has made a nomination, and the Senate has no constitutional … power reaching who the president will nominate, and that that is actually by design.”

But when Monteleoni attempted to bolster his argument by using the 1803 case of Marbury v. Madison, Parker cut him off, asking if he had a better case to rely upon “because the government has changed dramatically in the ensuing 200 years.”

Monteleoni began to articulate why the case was, in fact, relevant, the judge interjected again, saying: “It’s not going to gravitate to the top of my list.”

Fonte: POLITICO – TOP Stories