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Will Senator Menendez’s Speech or Debate Gambit Work?

Last week Senator Menendez’s legal team moved to dismiss all of the charges against him on the ground that they depend on evidence protected by the Speech or Debate Clause. The key issue is whether the Clause’s protection applies to certain meetings and communications between Menendez (and/or his staff) and executive branch officials, including Secretary of HHS Kathleen Sebelius and Marilyn Tavenner, the head of the Center for Medicare and Medicaid Services (CMS).

The prosecution alleges that Menendez was attempting to pressure the executive branch into making policy changes for the benefit of Dr. Salomen Melgen, a close personal friend who had given the senator significant campaign contributions and personal gifts. In the case of Sebelius and Tavenner, for example, Menendez questioned CMS’s prohibition on multi-dosing of the drug Lucentis, a policy that exposed Melgen to significant legal and financial jeopardy.

Menendez does not dispute that Melgen brought the Lucentis issue to his attention, but he argues that this does not prevent his communications with the executive branch from constituting protected legislative oversight. His brief states:

Senator Menendez serves as a member of the Committee on Finance, which oversees HHS and CMS. In June 2009, Senator Menendez alerted his staff to a Medicare issue concerning his “close personal friend,” Dr. Melgen, and his staff then began investigating the issue. Throughout their entire investigation, the prosecutors failed to grasp the policy issues at stake and wrongly concluded that because Dr. Melgen was using facts personally known to him in his administrative matter that he must have been asking for his friend to intervene in his case. Nothing could be further from the truth, and discovery bears out that Senator Menendez made no effort to ever intervene in Dr. Melgen’s pending matters. The issues from Dr. Melgen’s case highlight a broader policy question of this Administration’s actions that benefit pharmaceutical companies while discounting issues experienced by practicing physicians—a policy question that falls squarely within Senator Menendez’s oversight responsibilities as a member of the Senate Finance Committee.

Menendez Br. at 13-15 (citations omitted).

To prevail on this motion, Menendez will likely have to persuade the court of two propositions, each of which is fairly considered a long shot. The first is a procedural/evidentiary point about how the court should evaluate whether the senator’s executive branch communications were protected legislative activity, on the one hand, or unprotected “constituent service,” on the other. Menendez seems to argue that so long as his communications were ostensibly about policy issues, rather than a particular individual or case, they are protected even if they were actually motivated by a desire to help that individual (and, presumably, even if the executive branch officials understood this to be the senator’s primary or sole objective). See Menendez Br. at 8 (“Courts must examine the substance of the communications themselves to determine whether the communications are apparently legislative activity and thus immunized by the Speech or Debate Clause.”) (emphasis in original); id. at 9 (“An errand on behalf of an individual that does not require a change in policy would be unprotected case work . . ., but the appearance of a broader policy issue changes the Speech or Debate analysis entirely.”) (emphasis added).

This position seems to me to be more lenient toward the assertion of Speech or Debate than previously enunciated in the caselaw, including by the Third Circuit’s interlocutory opinion in the Menendez investigation itself. There the court seemed to think that the actual purpose of the communications, not merely their ostensible policy content, was relevant to the Speech or Debate analysis. See In re Grand Jury Invest. (Menendez), slip op. at 4-5 & n. 3 (3d Cir. Feb. 27, 2015). Because Menendez’s communications were not “manifestly legislative acts,” the Third Circuit held, the district court must make specific factual findings about the legislative or non-legislative character of the communications. To the extent the communications had both a legislative component (e.g., gathering information for legislative purposes) and a non-legislative component (e.g., attempting to influence how the agencies treated Melgen’s case), the court instructed that these components should be separated, if possible, and if not the district court “must ascertain the nature of the act or communication by assessing its predominant purpose.” Id. at 5.

This language suggests that Menendez’s communications will not be protected if their predominant purpose was to benefit Melgen, even if they were phrased in purely policy terms. Put another way, a member cannot obtain Speech or Debate protection for his otherwise unprotected constituent service merely by avoiding any explicit reference to the actions he wants the agency to take. Cf. U.S. v. Blagojevich, slip op. at 12 (7th Cir. July 21, 2015) (“’Nudge, nudge, wink, wink, you know what I mean’ can amount to extortion under the Hobbs Act, just as it can furnish the gist of a Monty Python sketch.”).

The second questionable part of Menendez’s argument is the proposition that attempts to influence executive agencies are protected by Speech or Debate if they qualify as legislative oversight. As I noted in a previous post, and as the Third Circuit explained in U.S. v. McDade, 28 F.3d 283, 300 (3d Cir. 1994), the Supreme Court has often stated that attempts to influence the executive branch do not fall within the Speech or Debate Clause. Menendez does not explicitly refer to this caselaw, but he presumably will argue that the Court’s broad language should be read as applying only to routine casework for constituents, not to efforts to monitor or guide an agency on matters of policy, particularly by a member of a committee with jurisdiction over the subject.

The court found it unnecessary to resolve this issue in McDade and the recent Menendez panel did not address it directly. It seems unlikely to me that the facts of the Menendez case provide a good vehicle for establishing a “legislative oversight” exception to the general rule laid down by the Supreme Court. But it is somewhat difficult to disentangle this issue from the first question of whether Menendez’s predominant purpose was to assist Melgen rather than to advance a legislative objective.

All in all, I would rate Menendez’s chances of prevailing on his Speech or Debate motion as slim. As noted in footnote 6 of the senator’s brief, however, an order denying his motion can be immediately appealed. Thus, win or lose at the district court level, Menendez will be able to delay his trial, possibly through the end of the Obama administration, if he so chooses.

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