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NJ Sen. Robert Menendez: An Attractive Target for Federal Prosecutors – Barry Scott Sussman

On April 1, 2015, U.S. Senator Robert Menendez (D) of New Jersey was indicted by a federal grand jury sitting in Newark, NJ on 14 counts, including conspiracy to commit bribery, honest-services fraud and the making of false statements.

The essence of the charges against Menendez alleges that he used his influence as a senator for the benefit of a long-time friend and campaign contributor.  This allegation appears to beg the question of exactly why people donate to and befriend politicians in the first place.  One could argue that the failure to assist a friend and contributor might better constitute the basis for criminal charges.  Similarly, one must wonder who would govern if every elected official were imprisoned for exerting influence on behalf of friends and contributors.  Perhaps the feds really have the goods on Menendez, but the initial description of his alleged misdeeds sounds a lot like run-of- the-mill politics.

U.S. Senator Robert Menendez vows to fight recent charges of corruption


But these kinds of fluid, vague and amorphous allegations are perfectly suited for U.S. federal courts, where criminality is basically whatever the prosecutor deems to be illegal.  Prosecutions like Mendez’s bolster the view that federal prosecutors do not investigate crimes, they investigate people.  Begin with an intended target, put them under the proverbial microscope and examine until something fits within the parameters of the growing and expansive federal Criminal Code.  With many federal “offenses” being little more than catchalls, it is usually only a matter of time before a federal prosecutor can twist some pattern of behavior into the basis for a federal criminal indictment.

 

Menendez has denied any wrongdoing and like so many other federal defendants, likely has committed no intentional crime, at least in his mind…and now finds himself entombed within a federal criminal matter in which the full force of the United States government will be mercilessly pitted against the accused.

The seemingly all-inclusive federal Criminal Code is used by creative federal prosecutors to criminalize even the most innocent behavior


These decided mismatches have given way to a criminal conviction rate of 99.5% in U.S. federal courts.  It is more akin to what one would expect in a banana republic or Third World dictatorship.  The feds are loath to admit the near statistical certainty of a conviction in a U.S. federal court and as a result, trials there are becoming increasingly scarce with approximately 97% opting to waive trial and enter a plea of guilty.  The 99.5% figure is, on its face, patently illegitimate and highly indicative of exactly awaits Menendez.

Yet Menendez came out swinging immediately after the indictment was announced.   “I’m 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,” Menendez said, during a press conference at a local hotel.  “But I will not be silenced.”

“At the end of the day I will be vindicated, and they will be exposed,” he added.

 

Menendez further explained that “Prosecutors at the Justice Department don’t know the difference between friendship and corruption.  Rather, they have chosen to twist my duties as a senator, and my friendship, into something that is improper.  They are dead wrong.”

He continued, “I am angry because prosecutors at the Justice Department don’t know the difference between friendship and corruption.”

Supporters of Menendez are quick to point out that all of the campaign contributions referenced in the indictment were within permissible limits and there is a stunning lack of evidence of any quid pro quo.

The senator essentially claims that prosecutors are misconstruing lawful, innocent acts.  But this is what federal prosecutors do.  Creative prosecutors see criminality where those less skilled only see compliance.  Finding new and imaginative ways to apply criminal statutes is how federal prosecutors forge their careers and advance up the judicial-corporate ladder.

The ongoing “gotcha” game of federal prosecutions calls to mind a report from years back involving prosecutors in the U.S. attorney’s office for the Southern District in Manhattan.  Allegedly, prosecutors there played a game where they would name a historical figure and discuss the federal charges for which they could theoretically be convicted.  The names of the “guilty” ranged from John Lennon to Mother Teresa.

Federal prosecutors were reported to fantasize about indicting personalities as diverse as John Lennon and Mother Teresa


As a long-serving United States senator, Menendez cannot feign ignorance about the way in which the Department of Justice (DOJ) operates and how career-driven federal prosecutors ply their trade.  Surely, he knows that U.S. federal prisons are bursting at the seams with people railroaded on far less serious accusations and with an even greater dearth of evidence.

Commentators were quick to call this “politics as usual in New Jersey.”  The idea of politicians working to aid friends and contributors can hardly be called a Jersey thing, but New Jersey has become synonymous with wide-scale political corruption, so such observations can only be expected.

A more accurate description might be “federal prosecutions as usual.”  The U.S. attorney’s office in Newark, NJ has long been a hotbed of prosecutorial misconduct and has produced some of the most extreme examples of those who chose to establish a prosecutorcracy, basically a system under which prosecutions lead to political advancement.  The Newark office is where such notable figures as Michael Chertoff, Samuel Alito and Chris Christie successfully built reputations upon the bodies of their victims.  And nothing served their purposes better than prosecuting high-profile defendants.

The Newark office of the U.S. attorney for the district of NJ has long served as a springboard for ambitious sorts ready to build careers upon bodies


Cases against rapists, murderers and other violent criminals are a dime a dozen, but successfully prosecuting a sitting United states senator is a resume making case,  the sort of things upon which prosecutors’ careers are built.  No purported misdeed is too small if the offending party is a noteworthy, guaranteed to generate publicity type of target.  Menendez is certainly familiar with the prosecutorial playbook now being employed against him.

Current NJ governor and former U.S. attorney Chris Christie positioned himself for elected office by targeting high-profile, low-value “offenders”


Menendez may have felt insulated to a degree because of his prior support of current U.S. attorney for the District of New Jersey, Paul Fishman.  Vague rumors about purported corruption on Menendez’s part had been swirling in New Jersey for years.  Earlier false rumors of an imminent indictment were traced back to previous U.S. Attorney Chris Christie.  But Christie had a long track record of leaking false information from his Newark office to a sycophantic media that dutifully regurgitated every unfounded innuendo, passing the results off as “news.”

U.S. Attorney for the district of New Jersey Paul Fishman has been oddly slow to show any progress on the various criminal investigations into his predecessor, Chris Christie


And while Menendez is certainly deserving of the same sympathy entitled to any other victim of the grand pernicious scheme that passes for justice on a federal level, one cannot help but wonder what affirmative steps he took as the senior senator from New Jersey to curb the very abuses at the DOJ under which he now founds himself ensnared.  It would appear that prior to becoming one of its victims, Menendez had little problem with the way in which “justice” is dispensed in U.S. federal courts.  It seems almost certain that his former complacency will soon be replaced with zeal to reign in out of control federal prosecutors and their incredible lack of accountability.  A similar metamorphosis was seem in Bernard Kerik, the former New York City police commissioner, whose federal conviction saw him go from a staunch believer in law and order to outspoken advocate for prison and justice reform.  There is probably more than a little truth in the saying that a liberal is a conservative who has been arrested.  The problem with Menendez’s anticipated conversion is that it will likely come after he is able to meaningfully impact the federal criminal justice system.


This article was previously published on 3 April 2015

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