Case 2:15-cr-00155-WHW Document 200 Filed 08/25/17 Page 1 of 6 PageID: 3911

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA )

) No. 2:15-cr-155
v. ) Hon. William H. Walls
)
ROBERT MENENDEZ and )
SALOMON MELGEN, )
)
Defendants. )
__________________________________________)

UNITED STATES RESPONSE IN OPPOSITION TO DEFENDANT MENENDEZS

REQUEST FOR SPECIAL TREATMENT BASED ON HIS STATUS AS A SENATOR

After being indicted twice for depriving the people who elected him of their right to his

honest services, defendant Robert Menendez now demands that this Court disrupt his criminal trial

so that he can perform his duties as a United States Senator. Defendant Menendez was indicted in

2015 and 2016 for bribery, conspiracy, honest services fraud, false statements, and violating the

Travel Act. Those indictments allege a seven-year bribery conspiracy in which he traded the power

of his public office for a lavish lifestyle that included private jet rides and vacations in Paris and

the Caribbean. Defendant Menendez concealed all of the reportable gifts he received on his

financial disclosure forms, and he lied to the media and the public about them after he was caught.

These gifts, the concealment, and defendant Menendezs lies will be presented in full at trial.

A bedrock principle of our criminal justice system is that the law does not recognize wealth

or title. Many defendants try to evade their criminal trialsbut only a United States Senator can

try to hide behind the very office he corrupted to avoid accountability to the public for his actions.

Every defendant should be treated equally, and no defendant should receive special treatment

based on power or privilege. This Court should reject defendant Menendezs effort to let politics

in Washington dictate the trial schedule in Newark.

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The only reason defendant Menendezs trial is scheduled for September 2017, almost two-

and-a-half years after he was first indicted by a grand jury, is because he has spent that time

pursuing a meritless argument that the Constitution immunizes him from prosecutionan

argument that has been rejected by every judge to have considered it. Now he seeks to use his

status as a United States Senator to pick and choose the dates on which his criminal trial will be

conducted. But this case is not about the Affordable Care Act, the debt ceiling, or the balance of

power in the Senate. The political consequences of defendant Menendezs trial or criminal

conviction should not be considered in the courtroom. This Court has consistently recognized that

defendant Menendez is not entitled to special treatment because of his status. It should maintain

that principle here.

This Court has already denied the request that defendant Menendez advances here.

Specifically, this Court ruled that with regard to adjourning the case, no, I am not going to adjourn

the case. If the Senator wishes to absent himself at times for purposes of vote, that is his

prerogative and I have no problem with that. Aug. 22, 2017, Tr. at 15-16. This Court remarked,

I think thats a very practical resolution of your concerns. Id. at 17. When defendant Menendez

asked this Court to explain to the jury that he will be absent because there is a vote which was

vital in the interest of the Senator to the discharge of his duties to the citizens of New Jersey, id.

at 14, this Court again rejected defendant Menendezs attempt to politicize his criminal trial: The

point is the Senator is no worse and no better than any other defendant. Any defendant has a right

to be present and any defendant has a right not to be present. But, to more or less color and say

well, he is not present because he is doing an important thing, Im not going to permit that. Id. at

17.

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During that exchange, counsel for defendant Menendez asserted that there is authority

that says other branches may not prevent the Senator from participating in Senate activities. Id.

Counsel for defendant Menendez, however, could not bring any authority to the Courts attention.

In response, the Court challenged counsel to find me a case or cases that support that point,

elaborating, And I suggest its going to be a fruitless search. We have been down this path with

regard to the constitutional issues. The Supreme Court has already denied cert. For you to be

bringing up this constitutional issue, I dare you to bring me a case other than some law school

activity. Id. at 18. Counsel responded: I accept the challenge. Id.

As this Court predicted, defendant Menendez failed to find a single case supporting his

assertion that his status as a United States Senator affords him the right to dictate the schedule of

his criminal trial. That is because there is no such authority. Instead, defendant Menendez has

cited inapposite Speech or Debate cases that merely describe the duties of a legislator, see Dkt.

No. 191-1 at 9, and cases that simply explicate the purpose of the Constitutions Arrest Clause, see

Dkt. No. 199-1 at 8-9. But these cases offer no relief. The Supreme Court has long held that the

Arrest Clause does not exalt Members of Congress to a status above the law:

It is, therefore, sufficiently plain that the constitutional freedom from arrest does
not exempt Members of Congress from the operation of the ordinary criminal laws,
even though imprisonment may prevent or interfere with the performance of their
duties as Members. Williamson v. United States, supra; cf. Burton v. United States,
202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057 (1906). Indeed, implicit in the narrow
scope of the privilege of freedom from arrest is, as Jefferson noted, the judgment
that legislators ought not to stand above the law they create but ought generally to
the bound by it as are ordinary persons. T. Jefferson, Manual of Parliamentary
Practice, S.Doc. No. 921, p. 437 (1971).

Gravel v. United States, 408 U.S. 606, 615 (1972); see also Davis v. Passman, 442 U.S. 228, 246

(1979) ([W]e apply the principle that legislators ought . . . generally to be bound by [the law] as

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are ordinary persons.) (citing Gravel, 408 U.S. at 615 (1972)). Defendant Menendez may be a

United States Senator, but he is not above the laws that Congress creates.

This is not the first time defendant Menendez has sought special treatment from this Court.

At defendant Menendezs very first appearance, he asked to be exempted from the routine

requirement that defendants surrender their personal passports because of his status as a United

States Senator. In response, the Government pointed out that if this were any other defendant

who did not hold the title of United States Senator, he would be required to surrender his personal

passport. . . . And were asking this defendant be treated no differently from any other

defendant. Apr. 2, 2015, Tr. at 18. Senator Menendezs attorney protested, But he cant be.

Id. at 19. This Court agreed with the Government that defendant Menendez would have to

surrender his personal passport, just like every other defendant in a criminal case, ruling that he

should be treated as every defendant. Id. at 19; see also id. at 20. This case began with defendant

Menendez being treated like any other defendant, and it should end that way.

Accordingly, the Government respectfully requests that this Court deny the defendants

motion.

Respectfully submitted this 25th day of August, 2017.

ANNALOU TIROL
ACTING CHIEF
PUBLIC INTEGRITY SECTION

By: s/ Peter Koski

Peter Koski
Deputy Chief
J.P. Cooney
Deputy Chief
Monique Abrishami
Trial Attorney
Amanda Vaughn
Trial Attorney
Public Integrity Section

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1400 New York Ave. NW

Washington, D.C. 20005
Telephone: (202) 514-1412
Facsimile: (202) 514-3003

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date, I electronically filed the foregoing pleading with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the

attorneys of record for the defendants.

Dated: August 25, 2017 s/ Peter Koski

Peter Koski
Deputy Chief
Public Integrity Section
Criminal Division
U.S. Department of Justice