Have you heard the joke about Oscar and Bob? It goes like this —
Q: What does Oscar the Grouch say when Bob Menendez visits Sesame Street?
A: You can’t come in, I don’t want my place getting dirty.
That’s funny because Oscar lives in a garbage can, but Bob Menendez is so unbelievably, filthily corrupt that his presence would definitely make even a trash barrel dirtier.
This is a polemic arguing that Schumer should immediately strip Menendez of his committee seniority, and should schedule a vote to expel him from the Senate. Expulsion from the chamber creates a vacancy in the constitutional sense, which based on NJ law will allow Governor Phil Murphy (D) to appoint someone to the seat. I think there is ‘not time’ for a special election before Menendez’s current terms ends in January 2025 anyway, so that appointee could stand for conventional general election in Nov 2024 from a position of incumbency, or could be a declared seatwarmer who won’t seek election to the Senate, whichever. Below the fold I’ll make the case in three sections: A, Menendez is intensely, embarassingly, and indisputably corrupt; B, principle and political calculations agree that Democrats benefit if Menendez is removed from the Senate ASAP; C, deeper analysis of possible outcomes, and recommended actions for engaged citizens.
Menendez is more corrupt than even John Roberts’ Supreme Court could conceive! (Who even knew this was possible?)
Most government officers actually aren’t very corrupt, but even of those who are, most do it in complicated enough ways that they make it hard for people to directly relate to / feel the corruption. Eg, lots of GOP congresspeople and shamefully some Democrats as well routinely engage in insider trading, but it’s complicated enough and close enough to their constitutionally protected duties that they don’t get charged or prosecuted. Only the intensely and stupidly corrupt ones actually get charged with crimes of corruption. Case in point: Bob McDonnell, erstwhile Governor of Virginia. He was convicted of corrupt acts because he seemed to do a lot of favors for particular rich guys who gave him lots of free goodies. But Chief Justice John Roberts’ SCotUS, in their infinite foolishness, overturned that conviction by reintrepreting the federal statute. In essence, that law now only bars elected officials from trading in actions that require their signature and which take legal force when so signed. And also it’s only illegal to trade that if it was directly in trade for a specific favor or gift — if you generally have a buddy relationship with someone and then happen to do official acts for them, that also isn’t really illegal.
It goes without saying that this is an absurd, pretzel-knotted interpretation of the law. In order to protect their colleague in arms McDonnell, the Bush judges had to rationalize so hard that they prevent essentially any prosecutions of public corruption. McDonnell himself was released, his conviction voided. Although prosecutors in the Southern District of New York did eventually manage to nail Sheldon Silver, 20-year Speaker of the NY State Assembly, he effectively shaved years off of his prison sentence for corrupt acts by arguing that the McDonnell ruling voided his original trial, thus netting retrial and reappeal and so on for 4 years after the original sentence was handed down. (He died in prison in 2022, at which time he would still have been behind bars under the original sentence from 2016 had that not been overturned and remanded to the trial court for a new jury.)
Menendez benefited immensely from this ruling when federal prosecutors came after him for his connections to Florida doctor Salomon Melgen in 2015. The McDonnell ruling was issued in June, 2016, after the charges against McDonnell had been filed but before the trial commenced. Ultimately that ruling forced such convolutions on the prosecutors and judge that the case fell apart — charges against Menendez were dropped after the jury couldn’t reach unanimity on whether he had definitely violated the narrow, formalistic criteria of the new McDonnell ‘definition’ of corruption. The hung jury stirred up enough dust that even retained his seat, escaping with only a “severe admonition” from the Senate Ethics Committee.
Some folks would have taken this close call and second chance as a wake up call to go straight, or at least to not get any more crooked. But apparently Union City Bob is a special kind of corrupt politician. You say SCotUS has made it basically impossible to convict for corruption? I’ll take that bet and raise you a kilogram of gold! And there are allegations of actively assisting a foreign government (Egypt) on matters over which they and the USA are at odds! Until guilt is proved, we in the USA presume innocence for criminal justice purposes, but Menendez’s history is clear and the allegations here are so astoundingly specific that at least some of them are almost certainly true. Whether the behavior was criminal (under the McDonnell standard) is hardly more clear now than it was 5 years ago, but the putrescence is unmistakable.
Democrats ought to remove Menendez from the Senate if he declines to remove himself; we also can’t afford to keep him
The word ‘corruption’ comes originally from the Latin for “altogether broken”; in the High Middle Ages, it primarily referred to decay and contamination. The modern denotation of self-dealing from official positions is a wise application of this historical meaning: corruption is repugnant because it abuses the public trust, and must be punished because permissiveness erodes the public trust. So the principled case for removing Menendez argues itself. New Jersey residents deserve someone who promotes their interests, not his own; Menendez doesn’t deserve to exercise official authority under the United States given how he has abused it in the past. But, contrary to what some might say, it’s also exceptionally dangerous as a political calculation to let this scandal swirl, and much better to flush it away immediately.
Prosecution of a sitting US Senator will hold national headlines almost as well as prosecution of a former President. With Trump as the presumptive GOP nominee, clean vs corrupt should be one of the mainstays of Democratic messaging to unaffiliated voters, and we can’t afford to have that narrative muddied. The best way to keep that contrast sharp would (of course) be to have no dirty politicians associated with the party; but as that ship has already sailed, the next best thing is definitely to prove that we’re the party of Cleaning House If Someone Gets Dirty. And that proof will be strongest if the Senate acts quickly — Queen Amidala says it well. (just hear “ethics” for ‘sovereignty’, and “corruption” for ‘invasion’)
We only really needed the first 12 seconds there, but hopefully you had a nice break? The point is, cynicism in the electorate empowers GOP nihilists and saps support for progressive movements, so we must hold the line against it and that means not only acting but specifically acting quickly — initiative gives us control of the narrative. If the headlines swirl for weeks or months, the story becomes “Democrats bow to public pressure, move against Menendez”; if we act promptly, it’s “In Menendez matter, Democrats take strong stand against corruption, move against member of their own caucus.”
Even if this incident weren’t likely to cast a shadow into the national election, it’s certain to be a major issue in NJ political campaigns specifically. Menendez’s seat is on the ballot in 2024 — if we let him hold on, he will be running for re-election under this pall in a must-win seat that is not actually so secure. POTUS Biden won NJ 57-41 against Trump in 2020 (out of about 4.5 million votes cast), but Phil Murphy only won his gubernatorial reelection 51-48 the next year (out of about 2.6 million votes cast). Clearly much of that is variation in the electorate, and the presidential race will help us. But the last time the GOP flipped a Democratic seat in a statewide NJ election, the 2009 Governor’s race when Chris Christie ousted John Corzine, corruption allegations against the Democrat were a significant feature of the campaign and polling showed that strategy had substantial bite. So Menendez noticeably weakens what should be a safe seat — even if he doesn’t actually put it at risk, he will likely need DSCC support that trades off against going on offense during the presidential cycle in other states. And then we’re stuck with this obviously, embarassingly dirty politician in our Senate caucus for another 6 years, ad infinitum. Now that these new charges have dropped, he’ll always pose a problem, but also he has incumbency and would be hard/expensive to get rid of by election, if we can do it at all. There will be no better or cheaper opportunity to ditch this albatross than if we act right away.
What If … ?
Expelling a member of the Senate is like conviction on impeachment — it requires a 2/3 vote. So what if the GOP helps Menendez, and we can’t make good the threat? Well, first, the consequences aren’t that high. It’d’ve been riskier in the 117th Congress (2021-22), when the Senate was split evenly and any defection gave GOP a functioning majority. But as it stands now, even if Menendez a) survives an expulsion vote and b) wants to switch to the GOP caucus afterward and c) the GOP allows it, we can actually afford to lose his vote for the next 15 months. It would hurt, but we could do it. Furthermore, this scenario isn’t very likely. Voting against corruption is a good look, protecting it is a bad look; because Menendez is a Democrat, supporting his expulsion would be free positive publicity for GOP. (But voting to punish a D is what everyone expects of the GOP, whereas it’s evidence about the character of Dems if we do it, so we come out ahead.)
So probably if Schumer calls for expulsion, we can get it. What happens then? Expulsion creates a ‘vacancy in representation’, which is the constitutional language triggering a process for replacement. NJ allows the governor to fill the vacancy by appointment (Menendez first got the seat in this manner, when Corzine ran for Governor from the Senate seat; so did Cory Booker, when Frank Lautenberg died in office). The governor is a democrat, and the law requires an appointee from the same party as the previous Senator, so that’s basically all fine. The corruption really can’t get worse, either, so that’s all upside. Theoretically the appointment lasts only until a special election can be called, but NJ is ponderous about special elections now: there was a reform after Gov Christie controversially set Sen Booker’s special election for literally 3 weeks before the state general with Christie himself on the ballot, so now they can’t be called except on standard general election dates. So I think the next opportunity for a ‘special election’ would be the Nov 2024 general, when the seat is up anyway.
I will leave it to others to pontificate on likely appointees.
In summary, prompt expulsion of Menendez should turn an intense liability into a modest asset, which is worthwhile by itself. But what about the best case scenario medium-to-longterm? Expelling a member of our own caucus over corruption gives Democrats an incredibly powerful platform to take on corruption more broadly across the federal government. Let’s seriously ramp up the pressure against corrupt judges on Roberts’ court. What otherwise-persuadable citizen will believe that attacks on corrupt Republicans are ginned up partisanship about business-as-usual dirty practices, when we’ve just taken the strongest possible stand against someone on our own team? Democrats will put the most powerful possible spotlight on corruption, casting ourselves as the principled defenders of government ethics and spirited public service. In the most optimistic scenario, this situation or another like it (may take multiple tries; Rosa Parks wasn’t the first to premeditatedly violate a segregation law, she was the first to successfully spark a broader movement) could be the trigger to finally bury the horrible Ronald Reagan joke about being “from the government and here to help”, and, eg, replace it with a reinvigorated notion of the Common Good as Robert Reich advocates. We could use this as a springboard to clean up self-dealing on the court (that opens at least 3 SCotUS seats), in the executive, and in Congress.
Next Steps — take the poll
Everyone, regardless of their residence, should call their Senator and demand that Bob Menendez be expelled from the Senate unless he can tender a resignation fast enough to spare himself the ignominy. SandyHookPromise has a comprehensive list of DC office contact info.
The McDonnell standard is a SCotUS interpretation of a federal statute, not of the constitution. (Put another way, this ruling was issued under SCotUS’ function as the highest court of appeals, not under its function as the ‘constitutional court’/arbiter of the constitution.) So this is only a problem as long as Congress allows that language and interpretation of the statute to stand. Congress should fix that by at least clarifying the definition of “official act” in the relevant statute / US Code Title 18 SS 201, and/or preferably by elaborating corruption statutes to clearly cover all manner of self-dealing and disreputable behavior. Let’s tell our electeds to prioritize that, and folks with the expertise could help by drafting and publicizing model legislation.
We should inundate prosecutors’ offices with complaints against corrupt behavior by government officers that should be criminally investigated. Maybe get a special counsel appointed for the purpose of investigating and prosecuting federal government corruption?