A federal judge on Thursday denied Sen. Bob Menendez’s (D-N.J.) motion to dismiss four conspiracy charges in his bribery case on grounds of legislative immunity.
Mr. Menendez had requested for the dismissal of charges relating to his recommendation to the president of a candidate for U.S. attorney of New Jersey, as well as his meetings and actions concerning foreign aid to Egypt, including his alleged disclosure of sensitive non-public information to Egyptian officials.
He said the charges should be dropped on grounds of the U.S. Constitution’s Speech or Debate Clause—which protects members of Congress from prosecution for their speech—and the separation of powers.
In his 17-page ruling, Judge Sidney Stein rejected his argument, saying that “none of the allegations in the S2 Indictment regarding the U.S. Attorney Scheme are protected by the Speech or Debate Clause.” (An S2 Indictment is a second superseding indictment.)
“While the recommendation by a senator may play a role in who the president later nominates to be an officer, the recommendation itself is not a constitutionally mandated function of a senator,” Mr. Stein said.
“Therefore, the Court finds that a senator’s pre-nomination activities—including information gathering in determining who the senator is considering for recommendation to the president plus the recommendation itself—are not legislative acts,” he added.
The judge also rejected Mr. Menendez’s argument that his approval or disapproval of foreign aid to Egypt is protected by the Speech or Debate Clause.
“However, while Menendez’s performance of the above-described legislative acts concerning the Egyptian Aid Scheme is protected by the Speech or Debate Clause, his promise to do the same is not,” he stated.
“Therefore, to the extent that the indictment alleges that a corrupt agreement was formed in which Menendez agreed—or promised—to use his power to influence foreign military sales or foreign military financing to Egypt, or to the extent Menendez says he will place a hold or sign off on foreign military sales or foreign military financing, the Speech or Debate Clause does not apply,” Mr. Stein added.
Mr. Stein said the 2nd U.S. Circuit of Appeals has made clear in previous cases that “even activity that might otherwise sit comfortably within the heartland of the Speech or Debate Clause—speech on the House floor—is denied protection from the Clause when the speech in not made ‘in the course of the legislative process,’ but rather functions as a ‘whispered solicitation to commit a crime.”
The judge also rejected Mr. Menendez’s claim that one charge violates the separation of powers doctrine governing branches of government.
Mr. Menendez, 70, held a powerful post as chairman of the Senate Foreign Relations Committee until he was forced to relinquish it after he was arrested last fall. He has refused calls for him to resign from Congress.
Prosecutors alleged that Mr. Menendez and his wife accepted bribes—which included mortgage payments, gold bars, and a Mercedes-Benz C-300 convertible—from New Jersey businessmen Jose Uribe, Wael Hana, and Fred Daibes.
In return, the senator allegedly performed actions to benefit the three men, including allegedly intervening in a New Jersey state criminal case involving an associate of Mr. Uribe, as well as a federal investigation.
Among other allegations, the indictment accuses Mr. Menendez of helping one man get a lucrative meat-certification deal with Egypt while taking actions favorable to the Egyptian government and helping another associate get a deal with a Qatari investment fund.
