Senator Robert Menendez (D-N.J.) is about to go on trial in New Jersey for corruption offenses. Both he and the government are entitled to a fair trial, whatever the charged offenses, just as in the case of every criminal defendant.
No defendant deserves special treatment because he’s a big shot public figure — even the former chairman of the Foreign Relations Committee and current member and ranking member of several other committees, as Menendez is.
{mosads}But something, virtually sui generis, is at stake in the Menendez case. It is simple: The U.S. Senate is at war with itself on party lines. We saw it in the instance of the vote to repeal and replace the Affordable Care Act. Senator John McCain (R-Ariz.) had to rise from his sickbed to travel to D.C. to cast his vote to defeat the McConnell plan to obliterate Obamacare. Just one vote ruled the day.
There will be other votes like that in September — raising the borrowing limit to avoid a government shutdown and reauthorizing the National Flood Insurance Program (an issue critical to New Jersey) are all but a certainty. Others, such as Obamacare (again), North Korea, Venezuela and Iran sanctions are likely.
Every senator is needed to vote the aspirations of his or her constituency. So Menendez is asking the court for the ability to have very brief — perhaps one-day — recesses during the trial to enable him to be present on Capitol Hill to debate or vote on critical issues that may come to the Senate floor.
The Menendez prosecutors, though, say no. Menendez is entitled no exceptional consideration that would adjourn the trial on several dates to allow the senator to attend critical votes in the Senate (prior motions to (i) move the trial to D.C. or (ii) commence trial during the Senate’s October recess were denied).
After all, the prosecution argues, Menendez can simply skip trial on those vote dates with the court’s permission. Sure, skip trial and not be there to assist your lawyer when critical testimony is coming into evidence that may ultimately compromise your freedom.
Now, the government isn’t being completely honest on why it doesn’t want scheduling delays here and there. Yes, the prosecutors don’t want to lose trial momentum — they want witnesses to testify one after another without the defense getting a chance for better cross-examination by having more time to prepare.
But the real issue is that they don’t want the jury to realize how critical Menendez might be to New Jersey, and indeed, the nation, in having to be on the Senate floor for his votes. They don’t want a jury to recognize the day-to-day gravitas possessed even by an indicted defendant. The judge has already refused Menendez’s request that the judge tell the jury he is absent because of a Senate vote.
Even so, the prosecutors simply don’t want the jury to give Menendez the benefit of the doubt over the facts at trial because of his continued importance to the nation. Who can blame them? The prosecutors want to win the case, and they therefore want to deprive Menendez of any trial edge he might receive when the jurors see, even if they say they don’t see, his image on the nightly news programs voting the interests (as he sees them) of his constituency.
I’m not arguing that Menendez is entitled to any specific benefit for himself, alone, or even for the people of New Jersey, although the latter would be a very compelling interest. But I don’t even live or work in New Jersey. Still, the senator’s votes might be important — even decisive — on national and international issues that are important to me (and maybe to you, no matter how you might see an issue).
Sure, some would argue, somewhat implausibly, that Menendez shouldn’t have gotten himself indicted, and it is critical to acknowledge that those who vote with Democrats may ultimately suffer as a result of his conduct if he is convicted and a Republican governor replaces him with a Republican-voting senator whose interests are inconsistent with how the replacement senator might vote.
But that is not really the issue. As of this moment, Menendez is the sitting senator from New Jersey with a constitutional right to be present at his trial and a constitutional “obligation” to vote the interests of his constituency. Plainly, he will be unable to do both.
I don’t believe that the Trump Justice Department prosecutors are opposing Menendez’s effort to have brief adjournments so that he can vote on critical issues in order to somehow help the Republican majority pass the legislation it wants. Menendez, after all, was indicted during President Obama’s tenure, and the government, under the Obama Justice Department, opposed Menendez’s vote for a change of venue to D.C. (which would largely have obviated the need for timeouts for Menendez to travel to D.C. for critical votes).
Still, the Menendez trial — putting aside the disputed facts of the case — may have far broader implications for the operation of the United States government itself. I believe, and so do many who (unlike me) actually loathed Bill Clinton and his politics, that the Supreme Court made a big mistake in not adjourning the Paula Jones trial until Clinton’s presidency was over. It was too much of a distraction for the office — and the nation.
That said, I don’t similarly think that a senator’s trial should be adjourned until his term is over. But, there is reason, and basis, for accommodating a senator’s — any senator’s — schedule, particularly given the very fact-specific makeup of the Senate, and the country, today. If there were 55-plus Republican senators, or 55-plus Democrat senators, I wouldn’t be making this argument. America could live without his votes, up or down.
Just remember the “thumbs down” given last month by one American hero who left his sickbed amid a far different kind of personal trial to serve his nation. Even if Menendez, himself, may not, as an individual, deserve this consideration, the people of both New Jersey and the United States certainly do.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. An adjunct professor at Fordham Law School, he regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications.
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