Commentary Magazine


Topic: Ted Stevens

The Menendez Indictment and the Future of the Pro-Israel, Hawkish Democrat

To adapt the old saying about luck: It sometimes seems as though if New Jersey residents had no corrupt politicians, we’d have no politicians at all. That perception of ever-present corruption can warp the expectations game. And it can also work against accused politicians: the astounding power of federal prosecutors is no doubt abused and sometimes the accused is innocent. This is what the Jewish supporters of Bob Menendez, who was indicted on corruption charges today, are struggling with as they face losing an increasingly rare pro-Israel liberal.

Read More

To adapt the old saying about luck: It sometimes seems as though if New Jersey residents had no corrupt politicians, we’d have no politicians at all. That perception of ever-present corruption can warp the expectations game. And it can also work against accused politicians: the astounding power of federal prosecutors is no doubt abused and sometimes the accused is innocent. This is what the Jewish supporters of Bob Menendez, who was indicted on corruption charges today, are struggling with as they face losing an increasingly rare pro-Israel liberal.

There are several clouds hanging over this situation, complicating the issue. The first is the horrid behavior of federal prosecutors in recent years. There was the witch hunt over the Valerie Plame leak, in which prosecutors turned their attention to hounding, harassing, and threatening to jail and bankrupt Karl Rove and in the end jailing Scooter Libby (on perjury) while ignoring the actual leaker in the case, Richard Armitage.

More recently, we saw the appalling case of Ted Stevens, the long-serving Republican senator from Alaska. In 2008, just a few months before Election Day, federal prosecutors indicted him on false charges relying on allegations coaxed from a cooperating witness who was saving his own skin. He was convicted a week before the election, which he lost. Roll Call recounts what happened next:

After trial we learned that government prosecutors concealed compelling evidence from the defense. The cooperating witness did not come up with the “covering his ass” testimony until right before trial and his previous inconsistent statements were hidden from the defense. Likewise, the government concealed evidence that its star witness had suborned perjury from an underage prostitute with whom the star witness had an illegal sexual relationship. And the government concealed evidence that another witness — whom the government flew back to Alaska away from the Washington, D.C., trial after their mock cross-examination of him went poorly — had told the senator that the bills he received and promptly paid included all of the work that was done.

Stevens was finally cleared after the election, and died in a 2010 plane crash. It is this behavior that reminds us someone must be watching the watchers, that the abuses of a government prosecutor with an axe to grind won’t be hypothetical, they will be real and they will cost innocent people dearly. The case against Menendez will also probably hinge on getting the cooperation of his associate Salomon Melgen, who was also indicted and therefore will be pressured to make a deal and turn on Menendez, and the all-too-real corruption of federal prosecutors should loom in the public’s imagination before they jump to conclusions and declare Menendez guilty from the start.

Another cloud over this case is the timing. There is no evidence that the charges against Menendez, who has been the most strident critic of President Obama’s appeasement of Iran, were ginned up to silence him. And it’s quite likely that the statute of limitations on bringing charges is the deciding factor here. Just because he’s being prosecuted does not mean he’s being persecuted.

Nonetheless, losing a powerful Democrat who is both a dedicated friend of Israel and an opponent of capitulation on Iranian nukes right at the moment a deal appears to be taking shape leaves a bitter taste in the mouths of the Jewish community. President Obama has gone on a public campaign against Israel’s government and even downgraded the U.S.-Israel military alliance while Israel was at war, and he has had success in his campaign to turn Israel into a partisan issue to drive a wedge between the remaining pro-Israel Democrats and the Jewish state.

All of which is why the Jewish community hasn’t been shy in voicing its support for Menendez. This support was the subject of a New York Times article this week:

By the end of 2014, Mr. Menendez had raised more than $200,000 for his legal fund — nearly a quarter of all its receipts — from political donors who have also given to pro-Israel political action committees, according to an examination of financial documents filed by the Robert Menendez Legal Expense Trust.

The Times gets at why the Israel issue is so important:

That line of thinking frustrates some Jewish and pro-Israel Democrats, who say Mr. Menendez has earned their gratitude but who will not go quite as far in alleging a conspiracy against him.

What’s more, Jewish leaders said, Mr. Menendez has won over the community on issues outside Iran’s nuclear program. He has been a staunchly liberal voice on matters of social policy; as the Senate’s only Hispanic Democrat, Mr. Menendez has been a champion of immigration reform, a popular measure in the Jewish community.

Certainly true. But if Menendez goes away, whoever replaces him in the Senate will hold the liberal line on immigration and social policy anyway. Much of the Jewish community adheres to a liberal policy agenda that is a dime a dozen in New Jersey. What bothers Jewish Democrats about all this is the suggestion–wholly and completely true–that Menendez’s approach to Israel and Iran policy sets him apart.

He is not the only pro-Israel Democrat, far from it. And he is not the only Democrat with concerns about Obama’s détente with Iran or the president’s relentless sniping at the Israelis. But as ranking member on the Senate Foreign Relations Committee and with his willingness to publicly dress down the president from the floor of the Senate, he represents a species of Democrat that is going quickly extinct.

A voting record only tells part of the story (much of the Obama presidency has been spent trying to stop Iran bills from coming to the floor in the first place). When Jewish Democrats see the adulation for Menendez in their community, especially one that crosses party lines, they know it’s not because of immigration, even if they’d like it to be.

It’s understandable for the Jewish community to show Menendez their support, especially before a trial even takes place. But it’s also important for Democrats to realize how their party will look to that same community if there’s no one to fill his shoes.

Read Less

Appearances and the Menendez Case

On Friday the Justice Department decided to leak to the press that an indictment of Senator Robert Menendez on corruption charges was imminent. While the ongoing investigation of the New Jersey Democrat, the most important critic of President Obama’s foreign policy, was no secret, the timing of the announcement raised more than a few eyebrows. Coming as it did the same week that Israeli Prime Minister Benjamin Netanyahu spoke to Congress about Iran, an issue on which there has been heated disagreement between Menendez and the president, the willingness of the government to go public with its plans to seek to put the senator on trial gives the prosecution the air of a political vendetta. But would such an accusation, which would make the president appear more like a banana-republic dictator than the leader of the free world, be fair? Not entirely. The case involves the sort of cozy cronyism that makes both liberals and conservatives queasy. It also reflects the somewhat loose political morals of the Garden State. But in addition to that, the decision to try to nail Menendez may tell us more about the way out-of-control federal prosecutors act than it does about an Obama administration that likes to punish its enemies as much as any of its predecessors.

Read More

On Friday the Justice Department decided to leak to the press that an indictment of Senator Robert Menendez on corruption charges was imminent. While the ongoing investigation of the New Jersey Democrat, the most important critic of President Obama’s foreign policy, was no secret, the timing of the announcement raised more than a few eyebrows. Coming as it did the same week that Israeli Prime Minister Benjamin Netanyahu spoke to Congress about Iran, an issue on which there has been heated disagreement between Menendez and the president, the willingness of the government to go public with its plans to seek to put the senator on trial gives the prosecution the air of a political vendetta. But would such an accusation, which would make the president appear more like a banana-republic dictator than the leader of the free world, be fair? Not entirely. The case involves the sort of cozy cronyism that makes both liberals and conservatives queasy. It also reflects the somewhat loose political morals of the Garden State. But in addition to that, the decision to try to nail Menendez may tell us more about the way out-of-control federal prosecutors act than it does about an Obama administration that likes to punish its enemies as much as any of its predecessors.

Over the weekend the New York Sun discussed the rather suspicious nature of the timing of the plans to indict Menendez. The juxtaposition of the announcement about hauling the senator into court not long after Menendez publicly stood up and challenged the president at a Democratic retreat gives the affair the stench of payback.

But it should be noted that the investigation of Menendez’s dealings with Dr. Salomon Melgen, a wealthy contributor and longtime friend of the senator, preceded the current argument. Indeed, it started even the first clashes between the administration and Menendez over sanctions on Iran that Obama opposed (but now brags about having implemented). Even if the president is quite pleased with the senator’s current predicament, he probably didn’t initiate the investigation or direct it. Indeed, the decision on the part of prosecutors to seek an indictment now, just as Menendez’s disagreements with the president on Iran and Cuba have made headlines, may be a function of the expiration of the statute of limitations on his alleged crimes rather than a presidential order to take down a political enemy. Given that he is from New Jersey rather than some farm state, many will simply assume that as the senator from Tony Soprano’s home, he has to be guilty of corruption.

But as the Sun points out, the Justice Department has a less-than-stellar record when it comes to investigations of sitting politicians. That’s not just because of the example of Alaska Senator Ted Stevens who was hounded out of office by prosecutors who secured his conviction by misconduct that eventually led to the entire case being thrown out. But the senator had already been defeated for reelection and died in a plane crash before he was vindicated.

Even worse, the efforts by the government to obtain Menendez’s emails, a potential violation of Congress’s impunity on matters of speech and debate, are deeply troubling. So far the federal courts have opposed that fishing expedition as a breach of the Constitution’s protection of Congress against the executive.

Some will see that as a hazy point of law. But it is no hazier than the question of what divides normal constituency service on the part of a representative or senator from actual corruption. So long as we give Congress such enormous powers to intervene in economic matters, any action by anyone in the House or Senate is open to suspicion. Even if you don’t like the smell of Menendez’s relationship with Melgen, it is puzzling why this has earned the senator so much attention from the Justice Department while other dealings by his colleagues are no more or less suspicious.

As with so many other federal cases brought against prominent persons, it’s hard to escape the feeling that the only reason this affair may go to trial is the lust of U.S. attorneys for the scalps of celebrities. Once these legal monarchs have the bit between their teeth, they rarely let go and continue probing the lives of the objects of their fascination until they find something, anything, on which they can procure an indictment, no matter how fuzzy the law or unclear the facts about the alleged crime may be. And prosecutors use their ability to manipulate the press to aid their campaigns. All sorts of allegations have been leaked about Menendez in recent years though much of it, including some scurrilous charges about sexual misconduct, has shown to be false or least unproven. The fact that he has been an exemplary senator and an eloquent voice on foreign policy doesn’t place Menendez above the law. But neither should his prominence subject him to unreasonable prosecutions.

It’s hard to know what to think about the case against Menendez because our assumptions about New Jersey politics seem to override the presumption of innocence due any person in this situation. But when you throw in the obvious desire of the administration to discredit its most courageous foe on foreign policy, it’s difficult to view this dispassionately. Misconduct should be punished but so should prosecutorial overreach and the use of the Justice Department for political ends. Just as legislators should avoid the appearance of corruption, so, too, should prosecutors and their political bosses.

Read Less

A Corrupt Criminal Justice System

Glenn Reynolds not only runs the indispensable Instapundit website, he is also a distinguished law professor at the University of Tennessee and writes a regular column for USA Today. Today’s column is an important one, “Our Criminal Justice System Has Become a Crime.”

The problem with the system is that prosecutors have acquired far too much power and face few consequences for bad behavior. Prosecutorial discretion—deciding whom to go after and whom to ignore—is an open invitation to corruption. And this corruption can have consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a week before he narrowly lost reelection in 2008 in a trial that involved “gross prosecutorial misconduct,” he undoubtedly would have been reelected and the Democrats would not have had the sixty votes in the Senate they needed to ram ObamaCare through.

Criminal statutes have proliferated to such an extent that the federal government doesn’t even know how many federal criminal statutes there are. People break laws all the time without knowing it. So a prosecutor investigating an individual can often find evidence of dozens, even hundreds, of “crimes” and charge the individual with them. And usually the case never goes to trial. Instead the person charged is offered a plea bargain and has no real option but to take it.

Read More

Glenn Reynolds not only runs the indispensable Instapundit website, he is also a distinguished law professor at the University of Tennessee and writes a regular column for USA Today. Today’s column is an important one, “Our Criminal Justice System Has Become a Crime.”

The problem with the system is that prosecutors have acquired far too much power and face few consequences for bad behavior. Prosecutorial discretion—deciding whom to go after and whom to ignore—is an open invitation to corruption. And this corruption can have consequences beyond the individuals involved. Had Senator Ted Stevens not been convicted a week before he narrowly lost reelection in 2008 in a trial that involved “gross prosecutorial misconduct,” he undoubtedly would have been reelected and the Democrats would not have had the sixty votes in the Senate they needed to ram ObamaCare through.

Criminal statutes have proliferated to such an extent that the federal government doesn’t even know how many federal criminal statutes there are. People break laws all the time without knowing it. So a prosecutor investigating an individual can often find evidence of dozens, even hundreds, of “crimes” and charge the individual with them. And usually the case never goes to trial. Instead the person charged is offered a plea bargain and has no real option but to take it.

As Reynolds points out, while a criminal trial positively bristles with due process—especially the jury’s power to determine guilt—the pretrial process has little due process. Prosecutors decide whom to investigate and what charges to file. Grand juries seldom refuse to indict.

Reynolds has solutions:

First, prosecutors should have “skin in the game” — if someone’s charged with 100 crimes but convicted of only one, the state should have to pay 99% of his legal fees. This would discourage overcharging. (So would judicial oversight, but we’ve seen little enough of that.) Second, plea-bargain offers should be disclosed at trial, so that judges and juries can understand just how serious the state really thinks the offense is. Empowering juries and grand juries (a standard joke is that any competent prosecutor can get a grand jury to indict a ham sandwich) would also provide more supervision. And finally, I think that prosecutors should be stripped of their absolute immunity to suit — an immunity created by judicial activism, not by statute — and should be subject to civil damages for misconduct such as withholding evidence.

As Reynolds likes to say, read the whole thing. This problem needs much more attention.

Read Less

The Havoc of Prosecutorial Misconduct

With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

Read More

With the exoneration of Tom Delay in Texas yesterday, yet another high-profile case of prosecutorial misconduct has emerged. This follows such other cases as that of Ted Stevens in 2008, and the notorious Duke Lacrosse case. But these were all cases in which top-flight legal talent was able to uncover the misconduct. There are many more that go unrecognized. The Innocence Project of Florida lists numerous examples, including one in which a man spent 25 years in jail for the murder of his wife, a murder he didn’t commit. They have a list of 1,100 exonerations in the years 1989-2012. Forty-two percent of those false convictions were caused by official misconduct, roughly half by the police and half by prosecutors.

Beyond the individual tragedy of an innocent man rotting in jail, these cases can have national repercussions. Senator Ted Stevens was convicted of seven counts of making false statements on October 27th, 2008. Outrageous prosecutorial conduct was soon revealed and Attorney General Holder asked that the convictions be set aside, which they were.

But a week after his trial, the 7-term senator lost re-election by 3,724 votes. There can be little doubt that had this case not been brought, which it obviously should not have been, he would have cruised to re-election. What difference, except to Ted Stevens, did that make? A lot: his successful Democratic rival provided the 60th vote in the Senate in 2010 to push ObamaCare through.

It was prosecutorial misconduct that gave us the most unpopular major piece of legislation in American history. 

Why does this happen so often in this country? In a high-profile case, there can be tremendous pressure on both the police and the prosecutors to produce a perp and then a conviction. Cutting corners is one way to do that. But also, prosecuting attorneys in this country, uniquely in the common-law world, are politicians. Winning a major case is a big addition to their résumé.

While there was no misconduct in the prosecution of Martha Stewart, it is highly unlikely that there would have been a criminal case at all had she merely been rich and not both rich and very famous. At worst, she would have been forced to “disgorge the profits.” So, basically, Martha Stewart was tried for the crime of being Martha Stewart. (To be sure, her legal team completely bungled the case, making her conviction much more likely.)

It is impossible to take the politics out of the office of prosecuting attorney. It is too deeply imbedded in the American system. (Tom Dewey, after all, went from Manhattan District Attorney to the very door of the White House in less than a decade.) But severely punishing prosecutorial misconduct—complete with disbarment and serious jail time—would go a long way towards making ambitious prosecutors think twice before withholding exculpatory evidence and other such misconduct.

But such misconduct is hardly ever punished. No one thinks the prosecutor in the Tom Delay case will suffer any penalty. The prosecutors in the Ted Stevens case were fired from the Justice Department, but remain free men. Only Mike Nifong, the prosecutor in the Duke Lacrosse case, was punished by disbarment. Convicted of criminal contempt, he spent one day in jail.

Lawyers, it seems, take care of their own, regardless of how deeply they stain the profession of law.

Read Less




Pin It on Pinterest

Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.