Why Menendez must resign

Friday’s indictment of Sen. Robert Menendez of New Jersey alleges misconduct that you might expect to read in a trashy crime novel:

• A Senate Foreign Relations Committee chair, selling out national security and American consumers for nearly half a million in cash, a Mercedes convertible for his wife and gold bars stashed at home.
• A “Christmas in January” message accompanying an alleged post-holiday bribe payment to her.
• A mob-style text message — “We need make things go away” — coming from an alleged Menendez co-conspirator who was under criminal investigation.
• Menendez scurrying to repay a bribe and calling it “a loan” after an FBI search alerted the senator that the gig was up.

Problem is, the story is not pulp fiction. Instead, it’s told in a 39-page indictment alleging stomach-churning corruption by a politician with muscle. Menendez faces charges of conspiring to commit bribery and extortion, and to deprive citizens of honest services.

Menendez is innocent until proven guilty. Even so, he would serve the country by resigning, demanding a speedy trial and, if he’s not convicted, running for his seat in 2024.

By resigning, Menendez would help the country in three key ways:

1. Honoring the public trust that holding elected office embodies.
2. Showing the public that no one should hold or seek office while under a serious indictment.
3. Distinguishing Democrats from Donald Trump, Rep. George Santos, and MAGA Republicans who defend individuals holding or running for office while indicted.

If Menendez were to step down, New Jersey Gov. Phil Murphy, a Democrat, would appoint a “caretaker” senator to serve for just over a year. If a jury does not convict Menendez, he would be tough to beat as an exonerated three-term senator in 2024.

Unsurprisingly, Menendez has already said he’s “not going anywhere,” and he is expected to announce he will run again. Meanwhile, notable New Jersey Democrats, including Gov. Murphy, and some state Republicans have called on Menendez to resign.

On Sunday, House Speaker Kevin McCarthy joined them. That’s ironic, given McCarthy’s refusal to press Rep. Santos to step down when he was indicted in May. It appears that in MAGA-world what’s sauce for the goose isn’t sauce for the gander.

Let’s call it like it is. There’s a parallel problem for Democrats who suggest that “due process” entitles Menendez to hold onto his post.

Due process is for legal procedures involving the potential deprivation of a fundamental right, and Menendez will get due process in court. There is no constitutional entitlement to the privilege of public service when under indictment for abusing one’s government position.

That’s why Trump should not be running while indicted.

On Sunday, the former president posted an unhinged rant on Truth Social, raging that “EVERY DEMOCRAT SHOULD RESIGN FROM THE SENATE!” The former president asked, “Why doesn’t the FBI raid Senate Democrat’s homes” like they searched Mar-a-Lago?

Of course, there was a court-authorized FBI search of Menendez’s home, but Trump carefully avoided any focus on the indicted senator. Trump and his advisers may appreciate that Menendez, by keeping his post, reinforces the former president’s narrative that it’s fine to run while under indictment, and even to serve if convicted and elected.

Or Trump may just want to distract attention from how Merrick Garland’s Justice Department is an equal opportunity law enforcer for Democrats or Republicans against whom there is compelling evidence of criminality.

Menendez’s current indictment is his second go-around facing federal corruption charges. In 2017, a jury hung in a prior trial. If you thought that Menendez, once tried, would be twice shy, you’d be wrong.

But note: The allegations in Friday’s indictment are far more damning than in Mendendez’s first trial. Federal prosecutors do not include the kind of specificity that’s in this indictment unless they have the evidence to support it.

Prosecutors have apparently inculpatory text messages that Menendez or his wife erased. How? The recipients didn’t delete them. The indictment also reflects that the government has details of the discussions of pay-to-play between Menendez and his alleged bribers, as well as the senator’s disreputable actions that followed. Between the lines are signs of wires, phone taps or testimony from insiders.

One future witness is almost surely the “Advisor” referred to in the indictment — probably an aide — who was allegedly a go-between in a questionable 2021 conversation with the soon-to-be U.S. Attorney in New Jersey, whose appointment Menendez controlled.

Later, the indictment alleges, the “Advisor” refused to play the middleman role when Menendez asked this person to have conversations that he or she felt crossed the line. The alleged attempts to influence criminal investigations also extended to the New Jersey state Attorney General’s office. Prosecutors from that office will also likely be witnesses.

So may the U.S. Attorney in New Jersey, whom the Justice Department recused from the case of one of Mendendez’s co-conspirators because of Mendendez’s apparent approaches to him.

Further, the indictment states that Menendez “used his power and authority to facilitate … sales and financing [of military arms to Egypt] in exchange for bribes.” He is supposed to have done that through co-defendant Wael Hana, who had introduced Menendez’s wife to an Egyptian intelligence officer. Sen. Menendez is also alleged to have “disclosed to Hana non-public information about United States provision of military aid to Egypt.”

Then there are allegations of Menendez attempting to interfere when the Department of Agriculture objected to one of his alleged co-conspirators price-gouging on halal meat sales because he had a monopoly.

That’s the way graft works. Corrupt vendors pass on to consumers the cost of the bribes they’ve had to pay. Move over, Boss Tweed.

Question: What kind of government official keeps gold bars at home after allegedly sharing nonpublic national security information with someone known to be in contact with a foreign intelligence service?

Answer: A government official who should resign.

Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.