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Third Circuit Rules Senator’s Acts Not Protected

Posted On: September 16, 2016 by Marc Neff

U.S. Senator Robert Menendez was indicted by a grand jury for soliciting and accepting gifts from friend Dr. Salomon Melgen in exchange for influencing an enforcement action against Melgen for Medicare overbilling, and intervening on Melgen’s behalf in a contract dispute between Melgen and the Dominican Republic. Menendez also failed to disclose reportable gifts from Melgen, as required by the Ethics Act. Menendez moved to dismiss the indictment in federal district court, which was denied. He appealed to the Third Circuit Court of Appeals.

The Centers for Medicare and Medicaid Services (CMS) suspected Melgen had overbilled Medicare for $8.9 million from 2007 to 2008 via “multi-dosing,” which results in receiving Medicare reimbursements for more vials of a drug than actually used. Menendez directed his staff to get in touch with Melgen and work with his lobbyist. The staff also arranged for Menendez to speak to several officials from the U.S. Department of Health and Human Services (HHS) and CMS purportedly on the government’s multi-dosing policy. In the contract dispute situation, Menendez met with a State Department official and directed his staff to obtain information from U.S. Customs that could lead to a solution to the dispute.

Menendez’s Argument

In both scenarios, Menendez argued that his and his staff’s activities were legislative acts because they addressed policy matters. Thus, as a U.S. Senator, he was protected from prosecution under the Constitution’s Speech or Debate Clause, which states that members of Congress “shall not be questioned in any other Place” for “any Speech or Debate in either House.”


Under the clause, only “legislative acts” receive the protection. The record showed, however, that officials believed that Menendez’s issues were isolated and confined to Melgen, rather than a general concern with the underlying government policies. The Third Circuit concluded that Menendez’s activities regarding the Medicare enforcement action and the contract dispute with the Dominican Republic were not legislative acts but essentially lobbying on behalf of a particular person and thus not entitled to Speech or Debate protection. It affirmed the district court’s findings and let the indictments stand.

• The U.S. Constitution’s Speech or Debate Clause is a privilege that immunizes lawmakers from criminal or civil liability based on their legitimate legislative activities.
• Some acts are inherently legislative like proposing legislation. Some acts are inherently non-legislative like communicating with constituents. When an act is neither, it is ambiguously legislative and requires the court to look at the content, purpose, and motive of the act to determine whether it is legislative or non-legislative.
• A U.S. senator who frames meetings and discussions using the language of policy does not necessarily render them legislative acts protected by the Speech or Debate Clause.
For more than twenty-five years, the Law Offices of Marc Neff has been defending the rights of individuals and corporations facing serious criminal charges. Throughout Pennsylvania, New Jersey, and elsewhere, Mr. Neff has successfully defended clients charged with white-collar crimes such as mail fraud and bank fraud, RICO, drug distribution, money laundering, sex crimes and other serious offenses.

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