NEWARK, N.J. — Sen. Bob Menendez’s fate could turn on a simple question: What is a constituent?
Specifically, could Dr. Salomon Melgen, Menendez’s longtime friend and now co-defendant, be considered a constituent even though he lives in Florida and Menendez represents New Jersey?
How U.S. District Judge William Walls rules on that issue could affect whether jurors in the senator’s trial draw the inference that Melgen’s out-of-state residence supports the government’s theory that Menendez’s actions were motivated by alleged bribes, Menendez’s defense team has argued.
The Democrat is charged with accepting free luxury hotel stays and flights on Melgen’s private jet in exchange for lobbying for Melgen’s business interests with officials in the departments of state, health and homeland security.
The trial is in its fifth week, with prosecutors presenting their case. Both sides touched on the constituent question in their opening statements last month, prompting Walls to order them to submit briefs.
Defense attorneys offered a malleable definition, based on geography but also on common interests and heritage.
“The evidence will show that petitioners across the country (especially those of Latino heritage) often approach the Senator for help with their problems, and that the Senator’s staffers try to help petitioners regardless of where they live,” they wrote. Menendez is the son of Cuban immigrants, and Melgen is a native of the Dominican Republic.
Prosecutors drew a different conclusion.
“The straightforward answer is that Senator Menendez’s constituents are the New Jerseyans that he was elected to represent in the United States Senate,” they wrote. They quoted passages from Menendez’s official website that referred to constituent services for “residents in New Jersey.”
The defense has argued that the constituent issue is a question of fact best left to the jury to decide, without a pronouncement from the judge.
Walls likely will have to give some guidance because both sides already raised the issue in front of the jury, according to defense attorney Michael Weinstein, a former Justice Department prosecutor.
The prosecution’s argument “is consistent with case law, and with the U.S. Constitution,” Weinstein said. “What the defense is suggesting is that Senator Menendez was acting as a lobbyist as opposed to a senator. To me, that’s not his role. The people who pay him are the citizens of New Jersey, and they pay him to represent their interests.”
Grasping an opportunity to advance the defense’s viewpoint in front of the jury last week, Melgen attorney Kirk Ogrosky asked former Democratic Iowa Sen. Tom Harkin, who met with Melgen at Menendez’s request in 2011, whether he regularly dealt with “policies having to do with oversight for people other than people from Iowa.”
“Absolutely, yes,” Harkin replied.
Not to be outdone, prosecutors then elicited from Harkin’s former health policy adviser that she had contacted Florida Sen. Bill Nelson’s office because Melgen “would have been a constituent” of Nelson’s. She discovered Nelson’s office wasn’t involved in Melgen’s case at the time.