Beyond Menendez’s Guilt Or Innocence: Was It Ethical?

Beyond Menendez’s Guilt Or Innocence: Was It Ethical?

Reprinted with permission from InsiderNJ.

As Senator Robert Menendez’s corruption trial heads into its second week, the question of whether  the Senator is guilty or innocent has eclipsed the question of whether his advocacy for his close friend, Dr. Salomon Melgen, was ethical. Indeed, they are not the same thing.  Increasingly these days that important nuance, between what’s illegal versus what’s unethical, is often lost or trivialized.

As a consequence, the stories most likely to be generated by the ongoing proceedings will either be about the tick tock of the show trial itself, or the cloak room intrigue about who might get the Senator’s seat, should he be convicted or resign.  Left hanging out there  unaddressed, is whether or not  Senator Menendez’s conduct was more in his own self-interest and Melgen’s interest than in the public interest.

There are three buckets that Menendez’s intercessions on behalf of  Melgen, an ophthalmologist,  can be sorted into. There’s the behind the scenes advocacy work done by the Senator and his staff  so that Melgen’s foreign girlfriends could get US visas. There is the heavy block and tackling by the Senator and staff over a controversial Dominican Republic exclusive cargo-screening contract with a company Melgen owned. And then there were Menendez’s robust efforts at quashing allegations by federal health regulators that Melgen had ripped off Medicare for tens of millions of dollars, while putting his patents at risk.

Melgen was accused by federal regulators of using single vials of  Lucentis, a drug that is injected in the eye to slow the loss of eyesight related to diabetes, to treat three patients when the single vial is prescribed  to be used on a single patient. Not only did this regime net Melgen a multi-million dollar windfall but, according to the Centers for Disease Control drug guidelines, put his own patients at risk of  infection.

Last April, Melgen was convicted in federal court in Florida on all 67 counts of fraud that prosecutors  estimate cheated Medicare out of $105 million. He faces 20 years in jail. The Palm Beach Post quoted Dr. Robert Bergen, a retired New Jersey retinal specialist who reviewed for prosecutors the charts of over 300 of Melgen’s patients. He said that Melgen was notorious in the world of specialty eye medicine. “Everybody knew about this guy,” Bergen told the paper after he testified Melgen’s treatment of his patients was “totally disgraceful.”

“It’s the most egregious example of totally taking advantage of patients, not caring about diagnosing them properly, it was the antitheses of what a decent physician should do,” said Bergen.

As federal health regulators were zeroing in on Melgen, Menendez appealed for intervention with his Senate colleagues and the Secretary of Health and Human Services for a re-interpretation of the regulations under which the government was pursuing Melgen.

We know from the Congressional Record and reporting before his federal indictment  that Menendez exerted pressure on the State Department to get the  Dominican Republic to abide by a multimillion dollar cargo-screening contract it had with a company Melgen owned. While the Senator said the contract was essential to stop the flow of illicit drugs into the island nation, there was resistance from the country’s business community,, which did not want to pay the $90 per container tariff the contract required. There was also push back from the island government that the scanning operation should not be privatized.

According to the World Health Organization the Dominican Republic has the tenth highest murder rate in the world, with that violence linked to the country’s being at the nexus of the Caribbean illicit drug trade.  The New York Times reported in 2013 that Menendez went the extra mile of discouraging the United States Customs and Border Patrol from lending the beleaguered island nation cargo scanning equipment.

The massive scale of the largesse showered on New Jersey’s senior senator by Melgen is not in dispute. Campaign finance records document  several hundred thousand dollars in donations to Menendez and PACS tied to him from Melgen and his family, made after the senator’s multiple intercessions.  We have the email  from the senator himself, quoted in the indictment where he asks Melgen for deluxe accommodations at the five star Park Hyatt Paris Vendome that are to include “king bed, work area with internet, limestone bath with soaking tub and enclosed rain shower, and views of courtyard or streets.”

In his own spirited defense, the senator has maintained that everything he did was nothing out of the ordinary range of Congressional constituent service. That may be true, considering the state of affairs in Washington, where an insatiable hunger for campaign cash means our elected representatives have to churn transaction after transaction to produce the hundreds of millions they need to stay in power.

“For nearly three years I’ve lived under a Justice Department cloud, and today I’m outraged that this cloud has not been lifted,” Menendez told supporters in Newark at a defiant appearance, right after he was indicted in June of 2015.  “I am outraged that prosecutors at the Justice Department were tricked into starting this investigation three years ago with false allegations by those who have a political motive to silence me. But I will not be silenced. I am confident that at the end of the day I will be vindicated and they will be exposed.”

He continued, “I am angry because prosecutors at the Justice Department don’t know the difference between friendship and corruption, and have chosen to twist my duties as a senator and my friendship into something that is improper. They are dead wrong and I am confident that they will be proven so.”

Very quickly, New Jersey’s Democratic Party establishment lined up behind their colleague.  Senator Cory Booker,  Representatives Bill Pascrell, Bonnie Watson Coleman, and Albio Sires, Jersey City Mayor Steve Fulop, and Essex County Executive Joseph Di Vincenzo all expressed support. But did any reporters follow-up and press these officials about whether they thought what the senator did was ethical?

So far, incumbent Democrats have been missing in action in answering that question and have scurried into party formation to deflect attention by fixating on the many ethical lapses of the Trump White House. Yet it is only right that we hold all of our elected officials to account and have them weigh in here, no matter which letter comes after their name. We have come through a few decades now where the mighty and powerful, whether they be Wall Street banksters, or deep-pocketed sports heroes,  behave badly, avoid any accountability,  only to go on and prosper. Even our disgraced politicians can work the spin cycle sufficiently enough to slink back into the quotable mainstream.

Back in 2013 when the Melgen/Menendez story first broke, I went to Washington and interviewed Fred Wertheimer, founder of Democracy 21, a campaign finance reform non-profit, who has extensive experience with the issue of Congressional ethics. “There are Senate ethics rules that say that a senator should be very careful about the appearance of impropriety if they are doing specific acts to benefit a specific person,” Wertheimer said.

Historically, Congress has done an abysmal job policing its own when it comes to ethics violations. Over the close to 250 years of its existence, the House has just expelled a handful and the Senate  ejected 15, but 14 of those members were bounced because they supported the Confederacy.

As for the courts, well their record is quite mixed lately. These days we can’t even count on federal corruption convictions surviving appeal. Early this year the US Supreme Court   overturned the corruption conviction of Virginia Governor Bob McDonnell. That eight to zero decision set off a stampede to federal  court houses across the nation by convicted  political bottom feeders who had found themselves on the wrong end of an FBI wiretap.

“There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote for the high court. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”

Wow, that seems so far removed from the national moment.

Menendez has consistently maintained that there was never any quid pro quo between himself and Melgen, where  campaign contributions were given in exchange for any particular action taken by the senator. And indeed, that’s always been the defense of members of Congress when confronted by angry voters who link big campaign donations to a member’s voting record.

According to Jack Abramoff , it’s what is “legal” that is the corrosive rot at the heart of our politics. Back in 2006, Abramoff pled guilty for his role in a political corruption scandal  that ensnared former Ohio Republican Congressman Bob Ney and ultimately brought down Republican House Majority Leader Tom DeLay.  He spent four years in jail.

When I asked Abramoff, who was born in Atlantic City, to comment on the Menendez case in 2013, he said all of Washington was in a fog of ethical denial about the chase for campaign cash. “Ultimately, as much as we want to dress  that pig in a pretty outfit, it is bribery and it is not bribery according to US law but it is certainly bribery….you don’t go to a judge before your trial and offer him tickets to the  Redskins game or do a fundraiser for them. Everybody would agree that’s bribery but somehow in Washington it is not seen that way.”



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