Judge declines to dismiss Menendez charges over immunity claims

A federal judge declined to dismiss some of the charges against Sen. Bob Menendez on Thursday, finding they do not violate constitutional doctrines on speech or debate and the separation of powers.

Menendez, a Democrat, had asked the judge to dismiss charges he sought to install a U.S. attorney who would interfere in the prosecution of an associate and acted as a foreign agent by steering military aid to Egypt in exchange for bribes, claiming actions he made in those instances are protected by constitutional provisions.

He argued the speech or debate clause, which guards lawmakers against prosecution over official legislative acts, bars the charges.

Prosecutors allege Menendez accepted hundreds of thousands of dollars in cash, gold bars, a Mercedes Benz, and payments to a consulting firm launched by Nadine Menendez — his wife and co-defendant — in exchange for his intervention in criminal prosecutions, disbursements of military aid, and international negotiations, among other things.

But Judge Sidney Stein found Menendez’s alleged attempts to install a federal prosecutor as part of an alleged illicit bargain are not protected because senators’ recommendations are not part of the constitutional advice and consent process.

“While the recommendation by a Senator may play a role in who the President later nominates to be an officer, the recommendation itself is not a constitutionally mandated function of a Senator,” the judge wrote.

While Stein found a senator’s approval or disapproval of foreign aid is a legislative act protected from prosecution, he added a promise to perform such an act is not guarded by the doctrine.

In effect, the judge wrote, Menendez could be charged over meetings with Egyptian officials organized by co-defendants Wael Hana and Nadine Menendez because the alleged illicit bargain to speed arms sales to Egypt is not protected.

“This is because those meetings, in implementing a corrupt bargain, are not legislative factfinding or information gathering meriting the Speech or Debate Clause’s protection,” Stein wrote.

The judge added the speech or debate clause could not defeat charges that Menendez shared non-public but unclassified information about staffing at the U.S. embassy in Egypt because “providing information to foreign officials is not the same as receiving information as part of the legislative act of information gathering.”

The judge also declined to dismiss charges that Menendez acted as a foreign agent, rejecting the senator’s arguments that such charges unconstitutionally violate the nation’s separation of powers.

Menendez had argued a charge under the statute, which is unprecedented for a member of Congress, violates the separation of powers doctrine by extending broad oversight over legislators to the other two branches of government.

Stein rejected that argument because Congress itself passed the statute that allows its members to be charged as foreign agents.

“In other words, Congress specifically decided that its Members should be prohibited from acting as foreign agents and, if they do, should be fined or imprisoned,” he wrote, adding Congress could amend the statute if it believes the law would impair their work.

Menendez can still appeal the denial, and it’s possible such an appeal would push back the senator’s May 6 trial date.