The corruption allegations against Senator Robert Menendez (D-NJ) have the hallmarks of a classic Capitol Hill scandal. The Department of Justice’s Public Integrity Section indicted Senator Menendez last spring for allegedly using his official position to promote the business and personal interests of his friend and long-time donor Dr. Salomon Melgen, a Florida ophthalmologist. According to the allegations, Dr. Melgen provided Senator Menendez with lavish trips to Florida, Paris, and the Dominican Republic, as well as political contributions to allies. In exchange, Senator Menendez allegedly interceded with immigration authorities to help Dr. Melgen secure visas for his foreign girlfriends, sought to influence an administrative enforcement action against Dr. Melgen for $8.9 million in Medicare overbilling, and pressured the Executive Branch to intervene in Dr. Melgen’s contract dispute with the Dominican Republic.

Unsurprisingly, this legal fight has been ugly. Senator Menendez and his legal team have accused the prosecution of gross misconduct in the grand jury investigation, of “misapplying” and “making up from whole cloth” certain legal standards, and “disparaging defendants’ motives and defense counsel.” The prosecution, for its part, has accused the Senator’s camp of deploying “vituperation” instead of substance and of advancing “false factual premises and specious legal reasoning.”

The latest iteration of this saga is taking place at the appellate level, where the Third Circuit recently heard oral arguments on Senator Menendez’s assertion that his actions on behalf of Dr. Melgen are entitled to immunity under the U.S. Constitution’s “Speech or Debate” Clause (an argument the trial court rejected). The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Like many legislative immunity clauses in other countries, the Speech or Debate Clause was born in part out of a desire to protect legislators from political prosecution for the views they express when legislating, and to encourage free and informed debate.

U.S. courts have interpreted the Clause quite generously over the years, reading it to cover not only actual speeches and debates, but also other “legislative acts” (such as voting on legislation, authorizing an investigation by a Congressional Committee, preparing reports, and holding hearings). Senator Menendez, however, argues for an even broader understanding of the conduct that qualifies as “legislative acts” shielded by the Clause. These arguments should be rejected. Not only are Senator Menendez’s claims legally dubious under existing precedents, but, if accepted, they would also hamstring the prosecution of classic quid pro quo corruption.

As noted above, U.S. courts have interpreted the Speech and Debate clause expansively, in a way that provides robust and meaningful protection. Indeed, the Clause not only precludes prosecution of a Member of Congress for “legislative acts” (broadly defined), but bars prosecutors from introducing evidence of those acts at trial. Nevertheless, courts have also limited the scope of the clause in several important ways. Two in particular stand out:

• First, although the Clause shields “legislative acts,” it does not cover promises to take legislative acts in the future. This may seem like an odd and formal distinction, but it enables prosecutors to go after old-fashioned quid pro quo bribery; evidence that a Member of Congress, in exchange for a bribe, agreed to vote for or against a piece of legislation is perfectly admissible, even though evidence of how the Member actually voted is not.
• Second, not all of the official activities in which legislators engage qualify as legislative functions entitled to the Clause’s protection. Evidence regarding clearly non-legislative acts — such as routine constituent services — is admissible to prove bribery. For example, as Senator Menendez conceded in the trial court, his efforts to secure visas for Dr. Melgen’s girlfriends fall clearly into this non-legislative sphere. Cabining the Speech or Debate Clause in this way ensures that although Members of Congress are shielded from prosecution for their legislative activities, they cannot assert their legislative immunities when they exercise their considerable influence in other capacities. That said, there are some kinds of activities — such as communications with the executive that involve legislative fact-finding and legislative oversight — that are difficult to classify as “legislative” or “non-legislative” acts for purposes of the Speech or Debate Clause. United States v. McDade, an unpublished Third Circuit opinion by then-Judge Alito, recognized the existence of this “middle category.” For such cases, courts must look to both the content and purpose of the acts to ascertain whether they are legislative in character.

This is the legal landscape upon which Senator Menendez is fighting his battle. His briefs before the Third Circuit advance a number of arguments that are not only legally wrong, but would also set dangerous precedent if adopted:

• First, Senator Menendez argues for an incredibly expansive understanding of constitutionally protected “oversight,” an understanding that is contrary to existing precedent. Quoting liberally from law review articles and congressional publications on topics other than the Speech or Debate Clause, the Senator argues in favor of an understanding of protected “informal oversight” that seemingly incorporates the full panoply of ways legislators can influence the actions of executive branch officials, including certain kinds of constituent work, meetings, and even social gatherings. According to Senator Menendez, as long as policy objectives animate (some of) the discussion, any incidental benefits to constituents (or non-constituent friends) are irrelevant. But cases like United States v. Brewster have previously highlighted that classic constituent work is not protected by the Speech or Debate clause. These types of constituent “favors” operate as one of the easiest areas for Members of Congress to exert their considerable influence on behalf of individuals. To bless a view of oversight that includes anything tinged with policy would transform the Speech or Debate clause into something that protects nearly all official activity that legislators engage in.
• Second, the defense argues that the district court improperly inquired into the Senator’s motive when determining that the Senator’s acts were not “legislative acts” protected by the Clause. However, existing case law specifically permits an inquiry into motive, and for good reason. For “manifestly” legislative acts, such as a committee hearing or a vote, an inquiry into motive is unnecessary to determine whether the acts are legislative in character. In instances of informal meetings with executive branch officials, however, differentiating constitutionally protected oversight from unprotected intercession on behalf of a private citizen will largely depend on the legislator’s reason for the meeting. If the legislator’s purpose is to advance the interests of the individual, and that is the understanding of the other parties, overall oversight objectives are unlikely to be advanced.

In effect, the Menendez camp seeks to shield nearly all official activity by a Member of Congress from prosecution. Under Senator Menendez’s interpretation of the Speech or Debate Clause, circumstantial evidence of any informal activity with a policy element would be protected, leaving only evidence of explicit quid pro quo bribery agreements as admissible. Members of Congress and those who seek to bribe them are cautious in their interactions, and proof of explicit agreements can be difficult to acquire. Creative, circumstantial prosecution is needed to convict these corrupt politicians when they use their influence to effect executive actions. Thankfully the Third Circuit was hostile to Menendez’s appeal during oral argument recently. We should be so too.