The Menendez Indictment - WSJ editorial, says Justice has no stand

[question everything]

Ill-defined federal laws now reach into virtually every sphere of human behavior, and thus prosecutors can destroy almost anyone they choose. The recent indictment of Senator Robert Menendez on 14 counts of corruption and “honest services” fraud is a troubling case in point that deserves more than a little skepticism.

Mr. Menendez is accused of doing government favors for his friend Salomon Melgen, a Palm Beach ophthalmologist and Democratic Party benefactor, in return for vacations and campaign cash. Justice’s quid pro quo tale is often sleazy—Brazilian actresses feature prominently—and Mr. Menendez’s conduct won’t enhance the reputation of Congress. But the quids and quos Justice identifies aren’t illegal on their own—and the indictment never gets to the pro part. Mr. Menendez is seen, for example, supporting visa applications for Dr. Melgen’s overseas girlfriends and urging the State Department not to undermine a port-security contract that a company Dr. Melgen acquired had signed with the Dominican Republic. But it is not unusual for elected officials to intercede on behalf of constituents and allies. The term for this is representative government.

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If Dr. Melgen had handed Mr. Menendez a paper bag of cash in return for some abuse of his office, that would be a crime. But Justice presents no evidence—no wiretaps, no smoking-gun emails, nada—that converts this ordinary political advocacy and legitimate political giving into an explicit quid pro quo.

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Perhaps the most damning allegation concerns an injectable macular degeneration therapy called Lucentis. Vials are overfilled in case of spillage, and the leftover is supposed to be discarded to prevent contamination and infections. Dr. Melgen’s eye practice was buying Lucentis and obtaining several doses from this single-use package, and then billing Medicare for the full cost of a fresh vial for every patient.

An outside audit determined that Dr. Melgen used this medicine laundering to overcharge Medicare by $8.9 million in 2007-08. As the dispute wended through administrative appeals, Mr. Menendez took an inordinate interest in Medicare reimbursement policy. For years, the Senator’s staffers lobbied the Medicare agency to revise the Lucentis coverage policy, which they argued was vague and wasteful. Mr. Menendez even argued the issue in a meeting on Aug. 2, 2012 with then Health and Human Services Secretary Kathleen Sebelius and her top deputies, arranged by and held in the Capitol Hill office of someone the indictment calls “Senator 3.”

Amid this saga, Dr. Melgen made a $300,000 contribution to a Super PAC earmarked for New Jersey on June 1, 2012, and then another 300 grand on Oct. 1. If he was buying government action, he was wasting his money. The indictment notes Ms. Sebelius told Mr. Menendez, and rightly so, that the government “was not going to pay for the same vial of medicine twice.” On Tuesday Dr. Melgen was indicted on 46 counts of Medicare fraud of $190 million. He has pleaded not guilty. Mr. Menendez’s failed intervention was grubby, but a felony?

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ustice makes much of the hospitality Dr. Melgen provided at his villa at the Casa de Campo golf and polo resort on the Caribbean, which Mr. Menendez did not acknowledge on his financial disclosure forms. But their families had been friends for nearly two decades—and Mr. Menendez is notable in the millionaire’s club of the Senate for not leveraging his lifetime in politics into personal enrichment. According to those same forms, he has a net worth between $80,003 and $200,000, plus a residence in Union City, New Jersey, valued at $250,001-$500,000.

This is a matter for the Senate ethics committee or New Jersey voters, not a jury. And remember, politicians: You could be next.

http://www.wsj.com/articles/the-menendez-indictment-1429138441