Menendez resurrected? Not so fast

Yesterday, Robert Menendez declared his political resurrection after a hung jury in his corruption trial, warning that he’d come after the critics and opponents who tried to bury him. A bipartisan group of his colleagues on the Senate Ethics Committee threw cold water on that idea, however. Chair Johnny Isakson (R-GA) and vice chair Chris Coons (D-DE) joined with the rest of the panel to announce that they would restart the probe into Menendez that got suspended in 2013 when the Department of Justice took over:

“In 2012, the Committee initiated a preliminary inquiry into alleged misconduct bySenator Robert Menendez. In early 2013, consistent with its precedent and in consideration of the Department of Justice’s criminal investigation, the Committee deferred its inquiry. At this time, the Committee intends to resume its process.”

Menendez’ chief of staff dismissed the announcement, saying that it will have the same result as the trial:

With incoming New Jersey Gov. Phil Murphy (D) and other top state officials pledging their loyalty to him — and Menendez suddenly looking like an incumbent ready to announce his reelection rather than a criminal defendant trying to avoid prison — the ethics probe means Menendez will still have this case hanging over him well into 2018.

Still, Menendez’s office expressed confidence he will overcome further investigations.

“The Ethics Committee will come to no different conclusion than this jury did,” said Fred Turner, Menendez’s chief of staff. “There is no merit to further pursuing this matter.”

Clearly, some of Menendez’ colleagues feel differently. And they have good reason to do so. The Department of Justice prosecutors did a lot of investigation and produced significant evidence that an Ethics Committee probe might not have otherwise uncovered. While they have subpoena power, defying a subpoena or offering false responses to a Congressional probe carries less risk than doing so with the FBI, as Washington politicos are forever rediscovering. (See Scooter Libby and George Papadopoulos, among other examples.)

Besides, an Ethics probe is not a criminal trial and does not necessarily have the same thresholds to reach conclusions. A jury had to determine beyond a reasonable doubt that Menendez engaged in criminal activity. The Ethics Committee only has to find that Menendez acted unethically and deceptively, and they can choose their own standard by which to reach that conclusion. Furthermore, they are free to set their own evidentiary standard too, which means that they will necessarily see more (from both sides) than the jury did, which may or may not make a difference.

All of this is theoretical, of course, and it might not even come to pass. If the DoJ decides to retry the case — which looks less than likely at the moment — then the Ethics Committee will have to shelve their probe yet again. Even if the probe finishes, there’s no guarantee that Menendez’ colleagues will want to set a precedent for a “stream of benefits” finding that lacks a smoking gun proving a mens rea for corruption. It doesn’t take a genius to figure out that such a standard, once adopted, might get a lot of exercise in the upper chamber.

Still, there’s enough smoke and heat coming from the Menendez-Melgen relationship that the panel might recommend punishment for Menendez. Even if that’s just a censure rather than expulsion, any negative conclusion will make a dent in Menendez’ re-election campaign and might peel off some of that support he’s getting from New Jersey politicos, too.

It won’t help that Menendez will share the same Ethics docket as two other high-profile subjects:

The Senate Ethics Committee may soon become one of the most active panels in the chamber.

It is all but assured the committee will investigate allegations that Minnesota Democratic Sen. Al Franken groped and kissed a Los Angeles news anchor during a 2006 USO tour. (Franken was not a U.S. senator at the time.) Senate Majority Leader Mitch McConnell, Minority Leader Charles E. Schumer and Franken himself have all called for the panel to take up the case. …

And depending on the outcome in the Alabama special election to fill Sen. Jeff Sessions’ old Senate seat, GOP candidate Roy Moore — if he wins — could immediately face an inquiry from the Ethics panel.

“It is an extraordinary conjunction of matters here,” said Robert Walker, an of counsel at Wiley Rein and former chief counsel and staff director at the Senate Ethics panel. “The committee has flexible rules. They have a flexible approach to staffing and they have a very good core in place now such that they will be able to handle the logistics.”

The question for Democrats will be whether Menendez’ innate value to them is outweighed by the damage the party will take for backing him in next year’s elections. Republicans will play the Menendez card across all of their Senate races, just as surely as Democrats will play the Roy Moore card in them, but national Republicans have distanced themselves from Moore. If Democrats embrace Menendez, they’ll get stuck with the slime — and in a state as blue as New Jersey, they have to have other options open to them.

Menendez might declare, “I’m not dead yet,” but it’s a safe direction to bet.