‘What Is a Senator?’ May Actually Be a Key Question in the Menendez Case

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Menendez. Photo: Drew Angerer/Getty Images

On the second day of jury deliberations in Robert Menendez’s corruption trial, one juror asked a question that cut to the heart of the case — and, also, to the rudiments of fifth-grade civics: “What is a senator?

U.S. District Judge William Walls refused to answer this inquiry Tuesday. Media commentators widely mocked it. But it was actually a perfectly understandable — and necessary — question. Our nation’s education system is geared toward grooming workers, not citizens, which means that a broad swath of the American public knows virtually nothing about the mechanics of their government. And yet, without a quick primer on those mechanics, politically ignorant jurors will have a hard time reaching a verdict in the New Jersey senator’s case.

In a colloquial sense, Menendez’s behavior appears straightforwardly corrupt. The senator (allegedly) accepted private jet rides, a Paris vacation, and campaign contributions from a Florida doctor — while aiding said doctor with an $8.9 million Medicare overbilling dispute, a private contract flap with the government of the Dominican Republic, and some visas for the physician’s girlfriends.

But when the Supreme Court overturned a conviction against Virginia governor Bob McDonnell in 2016, the justices established an exceedingly narrow legal definition of political corruption: So long as Menendez didn’t help the Florida doctor through “official acts” — that is, through the direct exercise of the powers of his office — then his conduct was (at least, arguably) legal.

In other words, if Menendez just used his privileged access to the State, Health, and Homeland Security Departments to lobby for the doctor’s desired policies — but never advanced those policies directly, through official legislation, in his capacity as a senator — then there’s a strong case that he is innocent.

According to Bloomberg, Menendez’s lawyer Abbe Lowell leaned into this point in his closing statement:

“He could ask people to look at, please consider, give consideration for a visa,” Lowell said. “At the end of the day, it was their decision to make.”

Lowell also said Menendez “asserted his ability but never his power to act as a legislator” and propose a bill.


He said that the senator was working on broad policy objectives and that none of his efforts succeeded for [the Florida doctor Salomon] Melgen.


Lowell and Melgen’s lawyers also argued that both men have had a long friendship and had no corrupt intent when they exchanged gifts.

To adjudicate Lowell’s argument, a jury would need to know exactly what powers a senator does and does not have over the Executive branch. Ostensibly, this is what the inquisitive juror was trying to ascertain.

In an ideal world, all Americans would be fluent in the lessons of Schoolhouse Rock!, and it would be illegal for a senator use his public position to indirectly aid his buddies in policy disputes.

But where we live, there are no stupid questions, just stupid educational and criminal-justice systems.

‘What Is a Senator’ Is a Key Question in the Menendez Case