These questions are now being raised in the context of the prosecution of New Jersey Senator Robert Menendez, as they previously were in several other ill-advised prosecutions, including those of former agriculture secretary Mike Espy, former presidential candidate John Edwards, the late Senator Ted Stevens, former Congressman Tom Delay and former Texas governor Rick Perry.
It is absolutely essential therefore, that prosecutors take responsibility for assuring that every prosecution of a public figure – most especially of public figures who are in disagreements with the executive branch– is based on hard, incontrovertible evidence that conclusively demonstrates that the elected official deliberately, willfully and knowingly crossed the line from constitutionally protected activity to felonious criminality. It is not enough to base prosecutions on the old saw that "where there's smoke there's fire." In cases involving public figures, the smoke may simply be a manifestation of politics as usual—the sort that allows political fundraisers and bundlers to make significant contributions in exchange for what they hope and expect will be access, support and patronage. Those prosecuting Senator Menendez seem not to have applied this rigorous test.
The Supreme Court has recognized that political contributions are an aspect of freedom of expression protected by the First Amendment. In the Citizens United case, the Court said that "influence over or access to elected officials does not mean that these officials are corrupt. . . ." In other words, just because a donor contributes money and gives gifts does not mean that a politician must studiously ignore the donor's interest—financial or otherwise – in particular policy decisions. It should not be enough for the prosecution to show that a donor's contributions may have given him access to or influence over the Senator. Prosecutors should have to show that the donor and the Senator made an explicit agreement that a contribution was made in exchange for an official act. The prosecution should have to prove that Senator Menendez took actions that benefitted Dr. Melgen not because he thought the action was right, not because it was in keeping with his consistent positions in the past, not even because they were friends. The government should have to prove beyond a reasonable doubt that those actions were taken pursuant to an agreement that they were given in exchange for the contributions. This will not be an easy burden to satisfy.
The Menendez prosecution also threatens the role of congressional oversight. Our system of checks and balances depends on each branch being free to check the others. Senator Menendez has challenged the Administration's policy toward Cuba, expressed concerns over a nuclear deal being brokered with Iran, questioned why an agency would condone throwing good medicine in the garbage, and asked whether a foreign government or the private sector is better at port security. Senators should not have to fear that the Executive Branch will unleash prosecutors to go after politicians who are critical of the administration. Equally dangerous are prosecutors who seek to curry favor with the administration by prosecuting its enemies without even being told to do so.
To protect against unchecked power by the executive, the framers included the "speech or debate" clause in our Constitution, protecting Members of Congress from being prosecuted for exercising their legislative power, including oversight. These protections are fundamental to our system of checks and balances. A questionable prosecution against a disfavored legislator, based on campaign contributions from an old friend followed by actions that might benefit that friend, threatens this balance of power.
"Large contributions get the donor or bundler access and consideration that others lack."
Perhaps the American people would be better served by politicians who are not bought and paid for "friends" of the rich. Perhaps politics as usual should be specifically outlawed if corruption is ever to be stamped out. Harvardites, be they on the Supreme Court or the court room, contend that there is a distinction between express bribery and implicit bribery, when the only difference is that the latter seedy practice is more difficult to prove than the former. I guess that is an example of why they are called The Ivory Tower Boys, high up above the stench of political reality and housed in luxurious quarters built by the selfish rich they so dearly love.
Where are the statutes limiting the time to initiate such prosecutions? The actions Senator Menendez allegedly took illegally are all old news, and quite low in value compared to the Ten$ of Million$ the Clintons accepted from foreign nationals for their relatively-obvious quid pro quo, yet Obama's Justice Department has not prosecuted them (nor Obama himself) for violating federal laws barring federal candidates from accepting donations from aliens.
The Clintons have not questioned the President's policies, preferring to be his lapdogs until their time window reemerges. Senator Menendez was not prosecuted until he performed his Constitutional duty in the Senate Foreign Relations Committee. President Obama is on record warning the law enforcement establishment that America's chief enemies are veterans and others who cite the Constitution of the United States. An active law professor himself, Dershowitz has been at the front of the pack defending this president's actions, providing him legal cover even in this article, distancing him from his legal staff.
With a Constitution that makes no mention whatsoever of political parties [never mind a two-party system], there certainly is more than enough corruption among the major political parties that write ballot access laws so biased it is nearly impossible for any competitors to gain a political foothold. If it looks, walks and quacks like a duck, it is neither an eagle nor a pterodactyl, predators though they are and were.
I think we realize that the current administration has adopted an ideology of Executive Branch Imperialism, ignoring both the Congress and the Constitution in pursuit of its political/ideological goals.
The prosecution of its political opponents in Congress (and in society at large) by the Dept. of Justice, the IRS, etc., is no surprise.
If it is determined that Dr. Melgen committed medicare fraud in his $21 million worth of 2012 billings, I have little sympathy for Menendez's predicament. Choose your friends wisely. Especially if you're a politician. Accepting gifts from people who are defrauding the American tax payer is not something any politician should be involved with.
Dershowitz, as usual, makes his usual great legal and historical points. The effective crimininalization of mere policy differences is heinous. But the point of this prosecution isn't to actually convict Menendez; it's to shut him up and get him out of the way of President Obama's obsessive pursuit of "openings" to Iran and Cuba, to which Menendez is strongly and vocally opposed. Funny how the investigation of Menendez comes to a head just as the President grandiloquently presents this so-called "good deal" with Iran.
Saul Alinsky's "Rules For Radicals," seemingly the handbook for governance of the Obama administration, explains how to neatly do this: pick the target, freeze it, personalize it, and polarize it." And so, rather than allowing Menendez to influence the policy debate, which would be a losing proposition, Obama uses his DOJ hacks to pick Menendez as its target, and freeze him out of the policy debate. Menendez will be too busy defending himself to have much say in what happens next with Iran.
I've been around for quite a few decades, and there have always been attempts at intimidation like this, but the frequency and venality of this Administration puts it at the top of the slimy hill. No wonder Americans have no trust or faith in their government. Why should they? For all they know, they could be next.
Thank you, Alan Dershowitz!! Finally someone has enunciated my own fears and suspicions. I was afraid there would be no one in the written media who had the chops to address this issue. Most especially the issue of prosecutors who seek to curry favor with the administration by prosecuting its enemies without even being told to do so. Since every department of the Executive branch of the government has an enforcement arm, it now becomes a weapon of mass destruction to the "enemies " of the president when each secretariat is staffed with people who understand the implicit goal of destroying anyone with opposing points of view. If there is anything this present administration will be noted for, other than the devastating foreign and domestic policies, it will be for their strategic and timely placement of staffers who have a clear understanding of why they were selected for the positions they now hold. From the actions of the Department of Just Us to the IRS it is obvious that everyone has a mission of which they are very aware. i.e.,"Cover this President at all costs!" This from the coordinated efforts of President Barack Obama, Vice Prsident Joseph Biden, and Senior Vice President Valerie Jarrett.
As a staunch Republican, I view the charges brought against Sen. Menendez as very much the same way as does Mr. Dershowitz. I would, however, want to spot-light countries such as Turkey and Venezuela, where baseless charges are often made against opponents of the Executive branches in those countries as a useful tool to limit free speech.
Congress and the public take note: If we do not stand up for our rights, they will most assuredly be diminished by those seeking more power.
There is an equal amount of danger in not prosecuting corrupt politicians as in prosecuting them.
True, the corruption has now extended to the Justice System, itself, so the danger still exists, mainly in not having an independent Justice Department totally independent of politics.