Hail, hail, the Democratic gang’s all here. Robert Menendez’ corruption trial heard from former HHS Secretary Kathleen Sebelius, who testified to getting pulled into an “unusual” meeting on a topic that she purposefully had avoided until the conversation at the center of her recollections. As the New York Times’ Nick Corasanti reports, Sebelius told the jury that she knew that Senator Menendez had been agitating for action on behalf of his friend and political benefactor, Dr. Salomon Melgen, to end his billing dispute with Medicare.
So why did Sebelius end up taking the meeting? Harry Reid intervened:
Kathleen Sebelius, the former secretary of Health and Human Services, testified on Tuesday that she frequently met with members of Congress about policy issues, but that a meeting in 2012 with Senator Robert Menendez was unusual because it came after a request from another member: Senator Harry Reid.
“It was unusual for Senator Reid to ask me to come to a meeting involving another member of Congress,” she said. “I think this was the only time in five and a half years that that occurred.”
What also made the meeting different, Ms. Sebelius added, was the topic. “I was asked to discuss a practice involving a billing issue before Medicare and Medicaid services,’’ she said. “That was not something that I was personally involved in on a basis like this.”
Reid’s intervention seems pretty curious … or maybe not, considering Melgen’s support for Democrats over the years. Menendez wasn’t Melgen’s only target for donations, even in the US Senate; he poured money into the coffers for Bill Nelson (FL), Amy Klobuchar (MN), Tom Harkin, and the Democratic Senatorial Campaign Committee — $30,400 in 2009. Even Kendrick Meek got a taste in Florida’s 2010 special election that resulted in Marco Rubio’s election. Reid certainly knew where that money originated, and may have leaned on Sebelius to take the meeting.
According to her testimony, Sebelius had tried avoiding Melgen. She told the jury that he was the only provider to her knowledge trying to claim multiple dosage payments off single vials, the dispute Menendez wanted settled in Melgen’s favor. Her staff had advised her to ignore Menendez’ calls and let lower-level staff rebuff those requests, presumably so she wouldn’t have to sit in a federal court explaining her actions.
In any event, the meeting was a bust, Sebelius testified. Without mentioning Melgen’s name, Menendez tried arguing that the CMS policy wasted medicine, an argument that Sebelius didn’t buy. Menendez did most of the talking, Sebelius said, but “we came in with a dispute and left with the same dispute after about 30 minutes.”
This matters for the prosecution in order to establish an “official act” by Menendez for a corruption conviction. In McDonnell, the Supreme Court ruled that putting together meetings is not an overt official act — but participating and running those meetings would be. Assuming prosecutors establish the quid pro quo, Menendez is at risk of a corruption charge, but not Harry Reid.
Defense attorney Abbe Lowell pressed Sebelius to acknowledge that Menendez never mentioned Melgen, which she did, but with a rather important caveat. Since Melgen was the only provider demanding a change in this policy and involved in a payment dispute over it — and Melgen was known to be a crony of Menendez — the connection didn’t escape Sebelius. In fact, as she testified, that was precisely why she had avoided Menendez for a year, and then emphasized that it was so unusual it never happened with her at any other time.
James Rosen and David Lee Miller provided an update on Sebelius’ testimony on Fox:
ROSEN: The former head of the Health and Human Services Department said she found it “unusual” when then-Senate Majority Leader Harry Reid asked her to meet with Senator Bob Menendez about a Medicare billing dispute in 2012. This testimony from Kathleen Sebelius marked the latest twist in Menendez’s bribery and corruption trial. Here is correspondent, David Lee Miller.
MILLER: A handful of supporters and protesters greeted Democratic U.S. Senator Bob Menendez as he arrived for day 15 of his bribery trial. Appearing under subpoena, prosecution witness, former Health and Human Services Secretary Kathleen Sebelius, testified about a meeting involving Senator Menendez. According to the prosecution, eye doctor, Dr. Saloman Melgen, gave Menendez thousands of dollars in gifts and political contributions in exchange for Menendez using his influence to help the doctor obtain visas for girlfriends and help in business deals. In August of 2012, Secretary Sebelius attended a meeting with Menendez at the office of then-Majority Leader Harry Reid. Sebelius told the court quote, “Everybody did some talking, but Senator Menendez, it was his meeting, so he presented the issues he was concerned about.” Prosecutors say there was only one issue concerning Menendez, convincing the secretary to change Medicare policy to benefit Dr. Melgen, who was appealing a Medicare decision that he overbilled the agency $8.9 million. Sebelius told the court quote, “The discussion involved policy this case has triggered.” The defense tried to show that there were other subjects discussed, but Sebelius held firm.
MILLER (CLIP): Do you agree with her characterization of that meeting, the secretary’s characterization?
SEN. BOB MENENDEZ (CLIP): As I have told you, never going to speak about this trial. Our speaking will be in the courtroom.
MILLER (CLIP): Does that mean you are going to testify?
MILLER: In earlier testimony, a former Medicare official testified that the senator had an “aggressive tone” during a 2009 phone call. That call ended abruptly, when the senator realized he wasn’t going to get what he wanted.
Will Menendez testify? It’s generally a bad idea to allow a defendant to endure a cross-examination, but he may have no choice. The prosecution has provided enough evidence on the quid and the quo for a jury to envision the pro. Menendez will need to explain why all of this was part of his normal duties of office and had nothing to do with the largesse Melgen showered on him, both personally and in contributions.