Corruption trial for Name-That-Party senator begins tomorrow

When the New York Times first published its curtain-raiser on the corruption trial of Senator Robert Menendez, a curious detail was missing from its thirty-plus paragraphs. The omission caught the attention of conservatives, and even non-conservatives. Evan Smith, former editor of the progressive Texas Monthly, conceded that the information left out was “odd.” And that information was …


The New York Times provoked mockery from conservatives on social media after the paper published a lengthy story on Sen. Bob Menendez’s (D-N.J.) corruption trial without providing his party affiliation on Tuesday. …

But the original 1,288-word story didn’t mention that Menendez is a Democrat at any point throughout the piece.

The reporter updated the story shortly after publication, saying that the lack of notation of party affiliation was an “oversight”:

Shortly afterward, the Times updated the story to put the party affiliation in the fourth paragraph:

The senator paused in a corridor of the federal courthouse here last month to oblige a beckoning courtroom sketch artist.

The artist spun around her canvas and Senator Robert Menendez of New Jersey looked briefly at her sketch of the courtroom, the sharp royal blues of his suit and broad charcoals of his outline a familiar form to the former lawyer, but his place in the painting a jarring shift: the defendant’s chair. His smile mixed with a grimace before he disappeared through the double wooden doors to the courtroom.

The moment underscored the unusual predicament facing Mr. Menendez, a senior senator: For the first time in 36 years, a sitting United States Senator is facing a federal bribery trial, one that comes as a bitterly divided Congress reconvenes amid the unrelenting turbulence of the Trump administration.

Since his indictment more than two years ago, Mr. Menendez, a Democrat, has steadfastly proclaimed his innocence, and last week he reiterated that. “I am going to be exonerated,” he said in a brief interview on Wednesday with reporters following a rally protesting President Trump’s immigration policies.


Smith’s correct that the omission was “odd,” especially given the attention that Menendez’ trial has drawn to a potential escape hatch for ObamaCare repeal. If Menendez gets convicted on corruption charges, he’ll either resign or face expulsion from the Senate. The upper chamber has not expelled a member since the early days of the Civil War, but mainly because they haven’t needed to rely on expulsion; members convicted of felonies have usually resigned ahead of any formal action by their colleagues. New Jersey Governor Chris Christie, a Republican, would appoint his interim successor — presumably a pro-Trump Republican — giving Republicans 53 votes and a new chance at getting to 50 on ObamaCare repeal.

The Washington Post curtain-raiser today focuses attention on that potential, which requires an explicit identification of party affiliation:

Both Sen. Robert Menendez (D-N.J.) and wealthy eye doctor Salomon Melgen, also on trial Wednesday, have both denied the allegations.

It’s a classic corruption case with a modern political twist: If Menendez is found guilty and subsequently steps down from his position, New Jersey Gov. Chris Christie (R) could name a Republican in his place. And in a divided Senate, one extra Republican vote could make a world of difference for President Trump’s agenda. Obamacare would probably have been repealed in July if Senate Republicans had an extra vote.

“The politics of it are fascinating, and they are fascinating from start to finish,” said Brigid Harrison, a political science professor at Montclair State University.


That potential has become more complicated, however. The Senate parliamentarian ruled that the reconciliation vehicle for repeal will expire with the FY2017 budget. They could attach a new reconciliation vehicle for FY2019 after passing a new FY2018 budget, but that comes with its own challenges:

The Senate parliamentarian told lawmakers that Republicans’ ability to pass an Obamacare replacement with just 51 votes expires at the end of this month, Senator Bernie Sanders said Friday.

The preliminary finding complicates any further efforts by Republican leaders in Congress to pass a comprehensive GOP-only replacement for the health-care law. …

The parliamentarian’s new finding doesn’t preclude Republicans in both chambers from seeking to restore the ability to use a 51-vote majority for an Obamacare repeal in the next fiscal year that starts Oct. 1.

The House Budget Committee has drafted a fiscal 2018 budget that could be used for both Obamacare repeal and tax reform. That budget may come to the floor in mid-September, and the Senate Budget Committee hopes to release its version in the coming weeks. Still, doing a tax overhaul and Obamacare repeal in the same legislation would be time-consuming and unlikely.

Without that context, the party affiliation becomes less of an acute issue, but not a non-issue by any stretch of the imagination. Corasiniti’s focus goes in more of a legal rather than political direction, however. He mentions the Supreme Court decision that overturned former Virginia governor Bob McDonnell’s corruption conviction, which ruled that state prosecutors had defined criminal corruption too broadly. The unanimous decision established that prosecutors had to tie the quid pro quo to official acts, not just “access,” and that they needed to prove the “pro” specifically. That could make convicting Menendez more difficult, Corasaniti notes, a point that the Supreme Court decision raised when first released in June 2016.


With that in mind, Menendez’ lawyers will ask to have the case dismissed :

Menendez’s lawyers perk up at this. The senator is accused of trying to influence executive decisions, not of writing laws that helped his buddy, they plan to argue, and they will ask the judge to throw the charges out altogether.

“There is a very real chance this case might be dismissed,” as soon as it gets started, Harrison said.

That seems doubtful on the eve  of opening arguments. One presumes that Menendez’ attorneys have already covered this ground in the 14-plus months following the publication of the McDonnell decision. It could come into play at the end of the state’s case, though, if they cannot provide any proof of official acts from Menendez being tied to payments from Melgen. That’s the key in the next few weeks. That, and how fast one party might run from Menendez … assuming people know which party would need to do so.

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