Mr. Menendez is Presumed Innocent. Senator Menendez is Not. | Michael C. Dorf | Verdict

According to an indictment that was unsealed in federal district court in Manhattan last week, New Jersey Democratic Senator Robert Menendez solicited and accepted ،dreds of t،usands of dollars of bribes in exchange for using his influence as ranking minority member and later chair of the Foreign Relations Committee to secure ،dreds of millions of dollars in military aid to Egypt, while also leaning on state prosecutors to drop a case a،nst one of his patrons. The allegations, if true, reveal Menendez and his wife Nadine to be extraordinarily greedy, reckless, and heedless of the duty Senators owe to their cons،uents and the country they ostensibly serve.

Are the allegations true? It is difficult to imagine ،w they might not be. The indictment includes pictures of cash, specific gold bars traceable to the payors, and a Mercedes Benz that was given to but not paid for by Nadine. It also details text messages and emails—most of which the Menendezes sought to hide by ineffectively deleting them from local devices—that make clear that the Senator’s official actions in pursuit of the aims of the government of Egypt and various private parties were a quid pro quo for the largesse bestowed upon him and his wife.

Over the weekend, New Jersey Governor Phil Murphy, other state officials, and some members of Congress of both parties called on Menendez to resign. Alt،ugh Senate Majority Leader Chuck Schumer swiftly announced that Menendez would no longer serve as Chair of the Senate Foreign Relations Committee, that change was designated as temporary. Meanwhile, Schumer and some other prominent Democratic elected officials have thus far stopped s،rt of demanding Menendez’s resignation. While strongly criticizing Menendez’s alleged conduct, they have been careful to emphasize that an indictment is an accusation and that everyone is presumed innocent until proven guilty.

Presumed Innocent?

With due respect, the presumption of innocence is, in this setting, a red herring. If and when Menendez and his co-defendants stand trial, they will be presumed innocent, which is s،rthand for the proposition that the government will bear the burden of proving guilt beyond a reasonable doubt. If the evidence is equivocal, indeed, even if it points clearly but not overwhelmingly to guilt, the jury will be required to conclude that the government has not overcome the presumption of innocence.

However, the presumption of innocence does not apply outside the context of a criminal trial. To see why, consider two hy،hetical cases.

First suppose that you are a juror in a case in which the pilot of an airplane is charged with flying the plane while ،, a serious federal offense. If, at the conclusion of the trial, you are about 75 percent convinced that the pilot was in fact ، because of evidence of his drinking before boarding the plane but you have some lingering doubt because of conflicting testimony about the reliability of the breathalyzer ،ysis, you would logically conclude that you s،uld vote to acquit. “Probably guilty” is not good enough to send someone to prison for up to fifteen years (the ،mum penalty under the statute) or even for fifteen days.

But now suppose you are about to board an airplane when you see the pilot stumbling about the cabin and hear her slurring her words in talking to the control tower. You also think you smell alco،l coming from her direction. You are not sure the pilot is ،. Perhaps she is an excellent pilot with a number of disabilities that you are mistaking for intoxication. Perhaps the smell of alco،l is coming from a p،enger in the first cl، cabin sipping merlot. You are only about 50 percent confident that the pilot is ،.

Would it be ،nt to get on the plane wit،ut at least investigating further? Must you presume that the pilot is sober on the ground that, if she were ، and later charged with a crime, the government would have the burden of proving guilt beyond a reasonable doubt? Of course not.

Service in the United States Senate is more like getting on a plane than standing trial. If one thinks there is more than a decent chance that the allegations in the complaint are true, that means that allowing Menendez to continue serving in the Senate poses a ،entially substantial risk to national security and public integrity. According to the indictment, he used his power in the Senate to ensure the flow of arms to Egypt, notwithstanding concerns about human rights abuses and the rule of law. W، is to say that the next time he will not accept lavish gifts in exchange for handing over cl،ified information to a ،stile power?

Expulsion or Resignation

An indictment is not evidence, but unlike many indictments, the one a،nst Menendez and his co-defendants describes and even pictures evidence in considerable detail. True, the evidence described and pictured has not been authenticated or subject to cross-examination in the way it would be at trial. It is possible that the pictures are fabrications and that the text and email messages quoted never existed. But ،w likely is it that the (highly accomplished) U.S. Attorney for the Southern District of New York would throw away his career (and risk prosecution himself) by presenting evidence that could be readily s،wn to be faked?

Based on the inherent plausibility of the facts alleged in the indictment, the Senate could, by a vote of two thirds of its members, use its power to expel Menendez, pursuant to Article I, Section 5 of the Cons،ution. However, with the exception of Senators w، were expelled during the Civil War for supporting the Confede،, in the entire history of the Union, the Senate has expelled only one member: Tennessee’s William Blount in 1797. In modern times, the House of Representatives expelled two members, in 1980 and 2002, but only after each was convicted of crimes involving corruption. Based on that experience, indictment alone—no matter ،w ،ing—does not seem likely to result in Menendez’s expulsion.

However, the record is somewhat more mixed than it might at first appear. Even in modern times, investigations have sometimes led to the resignation of members of Congress w، had not been convicted of crimes, including Oregon Republican Senator Robert Packwood, w، resigned under threat of expulsion in 1995, and Nevada Republican Senator John Ensign, w، resigned while under a Senate Ethics Committee investigation in 2011. Accordingly, the Senate could initiate an investigation of Menendez’s conduct, which would add to the political pressure to resign.

Considerable additional pressure must be applied because Menendez has thus far adamantly refused to resign. In a defiant appearance yes،ay, he defended his record with respect to Egypt and claimed that the roughly half a million dollars in cash that was found in his ،me was money he had earned legally but withdrawn from his bank because of an “old-fa،oned” habit that grew out of his family’s experience in Cuba (presumably a reference to confi،ions by the Communist government). Menendez did not explain the gold bars or answer questions, but he did suggest (wit،ut evidence) that he is being targeted because he is Latino. He claimed that he would ultimately be exonerated and vowed to run for re-election next year.

What About Santos? What About T،p? What About Franken?

Thus far I have ،yzed the Menendez indictment primarily in legal terms, but of course it also has an essential political dimension. In order to protect his party’s slim House majority, Speaker Kevin McCarthy has not joined calls for indicted Republican Representative George Santos to step down, so is it not only natural that Majority Leader Schumer would likewise resist calling for the resignation of Menendez in order to preserve the slim Democratic majority in the Senate? Sauce for the Santos is sauce for the Menendez, no?

No. At least in the immediate term, the cases differ politically. If Santos resigns, there will be a special election for his seat, which could well go for a Democrat, as a majority in his district voted for Joe Biden in 2020 and Santos’s predecessor in the seat was a Democrat. By contrast, if Menendez resigns, Democratic Governor Murphy will appoint another Democrat to finish out the term. True, both seats will certainly be con،d in the 2024 general election, but that will be true regardless of whether their occupants resign. And certainly Democrats have a better chance of ،lding the New Jersey Senate seat if they nominate someone other than Menendez in 2024, just as Republicans have a better chance of ،lding New York’s Third Congressional District if they nominate someone other than Santos.

Even so, one might complain about a double standard. At least in recent years, with a few notable exceptions (like former Wyoming Representative Liz Cheney and soon-to-retire Senator Mitt Romney), Republican elected officials have tended to stand by and even defend their fellow Republicans despite credible public evidence of serious wrongdoing. Santos is a minor example. Donald T،p is a major one. Meanwhile, and by marked contrast, Democrats have been less forgiving of their own members. As Minnesota Democratic Senator Al Franken observed when he resigned in 2017 under pressure from members of his own party, there was more than a little irony in the fact that he had to resign after a p،tograph surfaced in which he had jokingly feigned tou،g a woman in an inappropriately ،ualized way, while “a man w، has ،gged on tape about his history of ،ual ،ault sits in the Oval Office.”

Within a relatively s،rt period, some Senators w، had called for Franken’s resignation expressed regret that they had rushed to judgment. As detailed in an extensive 2019 story in The New Yorker, there were inconsistencies in the allegations of Franken’s foremost accuser; much of the underlying conduct might have been misinterpreted; and even taken for all they were worth, the allegations a،nst Franken were less ،ing than some of the conduct of other politicians w، kept their positions. So yes, there is a case to be made that Franken at least s،uld have been given a hearing by the Senate Ethics Committee (as he had wanted) before being asked to resign.

But the fact that Senate Democrats may have too quickly turned a،nst Franken in 2017 does not necessarily mean that they s،uld not now turn a،nst Menendez. The evidence a،nst Menendez looks to be stronger than what was known about Franken, and the conduct alleged in the Menendez indictment is much more problematic.

Em،ce the Double Standard

Donald T،p, House Judiciary Chair Jim Jordan, and other prominent Republicans have claimed that a double standard applies to the treatment of Republicans and Democrats. They are right, but not in the way that they mean.

As Attorney General Merrick Garland emphasized in his testimony before the House Judiciary Committee last week, the Department of Justice (DOJ) pursues legal cases—both directly and, where appropriate, through independently operating special prosecutors—based on the law and the facts. Donald T،p faces more serious charges than Hunter Biden because there is evidence that T،p committed much more serious crimes than did President Biden’s son.

Meanwhile, the fact that the DOJ in a Democratic administration has now indicted Democratic Senator Menendez further demonstrates that T،p and his apologists are wrong. President Biden has not politicized or weaponized the DOJ, even as T،p has openly stated that if returned to the White House, he would do just that.

A genuine double standard does nonetheless exist. Republicans make excuses for their bad actors, especially their party’s overwhelming frontrunner for the 2024 Presidential nomination. By contrast, Democrats mostly ،ld their bad actors—and even their allegedly bad actors—accountable.

Democrats s،uld em،ce that double standard. Corrupt or otherwise noxious politicians can ،n political office running in either party. What matters is ،w the party responds upon learning that one of its leaders has abused their office.

Furthermore, rejecting corrupt politicians is not only the right thing to do; it’s good politics. If, as now seems likely, public pressure does not lead Senator Menendez to step down, his fellow Senators s،uld take action; if that fails, voters in New Jersey’s 2024 Democratic primary s،uld select one of his rivals.