The Play's The Thing -- With One Player To Remain Nameless

The key defense which had been offered by U.S. Senator Robert Menendez (D-NJ) to the swirling ethics charges, and now, possible criminal investigation surrounding his 1994-2003 lease arrangement with the North Hudson Community Action Corporation (NHCAC), was linked to a so-called "oral permission," as the New York Times recently, and somewhat beguilingly dubbed it.

Back in 1994, at the time he was entering into the lease deal, one through which he was able to personally take in over $300,000.00 in rent from the agency he assisted in obtaining federal funds over nearly a decade, Menendez said he had received "verbal approval" for the lease arrangement from the House Ethics Committee. He has repeated that claim at every opportunity, even though his campaign spokesman, Matt Miller, readily concedes that the House Ethics Committee has no record of the request, and Menendez cannot now even remember who he had the conversation with 12 years ago. Somehow, though, he remembers the conversation.

As widely noted, Menendez had also garnered well over $30,000.00 in campaign contributions over the years from the employees of the organization that today receives nearly 2/3 of its budget from federal funding.

Thus, a few short paragraphs containing an aside by the acting Senator, ones buried deep in a Star-Ledger story on Sunday, September 10th, seem to have finally blown the lid completely off our nascent Senator's first big cover story regarding his lease with NHCAC. They confirmed a revelation, once again at the very end of a Star-Ledger story just a day earlier on Saturday, September 9th, one that perhaps first heralded the impending doom for what might be wryly termed his initial "perfectly good lie."

Somewhat cynically, the Record seemed to actually brush aside the sudden Menendez "change of story," though their report did note that, "[h]e did not offer another name." But the authors, Josh Gohlke, Herb Jackson and Peter Sampson, nevertheless hammered hard on the wild and almost completely unsubstantiated accusations of partisanship coming from the Democrats, including claims from Menendez that the U.S. Attorney was involved in a smear "straight out of the Bush-Rove playbook" because the records of the agency were subpoenaed following the public revelations regarding his "special" financial relationship with NHCAC over the years.

Obviously, Menendez must have thought, like Axel Foley, the "Beverley Hills Cop" character played by Eddie Murphy, that his cover " story . . . was working" . . . and that it was "a perfectly good lie."

The fact is, that the NJ press corps had rather astonishingly let Menendez get away with it for almost two solid weeks, before finally working up the gumption to ask him who said it. He claimed repeatedly that back in 1994, just as he was entering into the deal, he had received a "verbal approval" for the arrangement from the House Ethics Committee. But apparently no one pressed him on the issue until last week. That should have been one of the first questions he was asked.

So, finally, Thursday last, the Senator blurted out a name of his opinion "benefactor" with this upshot -- no more "perfectly good lie."

The fib was only working as long as he didn't identify who gave him that "verbal" advice. But once he trotted out the name -- Mark J. Davis, the House Ethics Committee's former top lawyer -- his story almost immediately fell apart. How convenient that claim must have seemed to the Senator! After all, Mark Davis died just last year. Thus, Mark wasn't around to confirm or deny the Menendez recollection of their supposed conversation.

But, as Jeff Whelan & Joe Donohue of the Star-Ledger reported at the very end of their story on Saturday:

Menendez also faced new questions about the rental deal that triggered the investigation. He has said the House Ethics Committee gave him verbal clearance for the arrangement in 1994, but that there is no written record of the conversation. Yesterday, for the first time, he offered the name of the lawyer he said he consulted: Mark Davis.

However, according to Roll Call, a Capitol Hill publication, Davis left the ethics committee in 1993. Davis died last year.

"It was his recollection that he talked to him about this, but it must have been someone else. It was 12 years ago," said Matt Miller, Menendez's campaign spokesman.

Whoops! Naturally, the folks over at Enlighten-NJ, duly noted the Menendez muddle, and they spotlighted it on Friday in a post entitled, Bob Menendez Digs a Deeper Hole.

As Enlighten-NJ so succinctly put it, referring to the Saturday Ledger story,

Today, the Star-Ledger reports that Mark Davis left the House Ethics Committee before Menendez entered into his deal with the agency.

That Saturday story was confirmed by Robert Cohen in a follow-up in the Sunday Star-Ledger, after a sit-down with the Senator. Once again, the revelation was found in the concluding grafs of the story.

Menendez said during the interview that the House ethics committee gave him verbal clearance for the arrangement in 1994, but that there was no written opinion. He initially suggested last week that ethics committee lawyer Mark Davis gave him the advice, but Roll Call, a Capitol Hill publication, said Davis left the ethics committee in 1993. Davis died last October.

Menendez said Davis "is the guy we used to talk to," and he was "working on a recollection from 12 years ago." He said it is common to get verbal advice from the committee staff.

"Obviously when I got that advice, I didn't give a lot more thought to it," he said.

So, naturally, in a comment on that Enlighten-NJ post, we focused in on the obvious implications of his remark, and raised a sample question for the Senator, to wit:

"Well, Senator, if you now admit, as reported in the Star-Ledger, that your recall as to who gave you the advice was faulty "working on a recollection from 12 years ago" why should anyone accept your insistence that you actually asked anyone at all for the advice?"

"Isn't it at least as credible, Senator, that you just thought about asking for the advice, and then perhaps thought better of it when you started actually browsing through the House Ethics Rules?"

"You follow me, Senator? . . . Senator?"

After all, it's only fair . . . his words; his bad, right?

So, the whole inconsistency was buried at the tail end of what was covered as a "reportedly" bravura performance by the Senator before the State Democrat Party at a convention in Atlantic City, which involving accusing the U.S. Attorney Chris Christie of directly participating in a political smear campaign. Menendez was on the offense, publicly questioning the timing of the investigation, and newspapers throughout the State dutifully reported accordingly.

The Jersey Journal even printed a Newhouse News Service story, lustily proclaiming "Dems cheer Menendez as he rips GOP 'smear'" in the header.

Thought caught in an obvious fib, the acting Senator had crossed the line -- it was man the torpedoes -- and all the Democrat partisans, from Governor Corzine on down were now openly accusing Chris Christie, the U.S. Attorney for New Jersey, of conducting a political smear, by initiating an investigation.


One wonders -- would it have made any difference at all if Menendez had actually asked for and received a "verbal approval" for the arrangement, all those many years ago? The answer is "no."

As the Philadelphia Inquirer correctly noted in their story by Chris Mondics and Cynthia Burton on Saturday,

verbal opinions afford members little protection, and cannot be used to head off an ethics investigation if their conduct is called into question.

Menendez has never tried to explain why he did not ask for a written opinion, which the Inky also noted, can indeed offer protection from an ethics probe.

Written opinions, on the other hand, do afford members some level of defense. If the ethics committee issues an opinion approving a transaction, the member can cite the letter as grounds for preventing an ethics investigation.

In fact, the House of Representatives Ethics Manuel specifically provides, in part, Chapter 1 under Advisory Opinions:

Anyone who acts in good faith in accordance with a written advisory opinion from the Committee may not then be investigated by the Committee based on the conduct addressed in the opinion, and courts will consider reliance on such an opinion a defense to prosecution by the Justice Department. (Emphasis supplied)

So, why did Menendez not ask for a written opinion? We cannot get into his head, but he is a lawyer, after all. Had he actually read the House of Representatives Ethics Manuel, he would have found several provisions that might have given him pause. For example, the following are among the standards and prohibitions governing the behavior of Members of the Congress of the United States, and are clearly located right there in that Ethics Manual.

Of course, it is only a portion of what then-Congessman Menendez would have read, had he reviewed the standards when he was considering entering into a lease arrangement to financially benefit himself from an agency in his Congressional District, one dependent upon federal financial assistance.

In leafing through the Ethics Manuel, for example, Congressman Menendez would have come across several specific references to federal criminal law, under a portion of:

Chapter 3:

OUTSIDE EMPLOYMENT AND INCOME OF MEMBERS, OFFICERS, EMPLOYEES, AND SPOUSES

entitled

CONTRACTING WITH THE FEDERAL GOVERNMENT

Under the Federal Criminal Code, a Member of Congress may not enter into a contract or agreement with the United States Government. Any such contract is deemed void, and both the Member and the officer or employee who makes the contract on behalf of the Government may be fined (18 U.S.C. secs. 431-32). To ensure that these prohibitions are carried out, public contracting law requires every Government contract to contain a clause expressly stating that no Member of Congress shall share in any benefits arising from the contract (41 U.S.C. sec. 22).

That referenced statute specifically provides, in part, as follows:

41 United States Code, sec, 22. Interest of Member of Congress:

No Member of Congress shall be admitted to any share or part of any contract or agreement made, entered into, or accepted by or on behalf of the United States, or to any benefit to arise thereupon.
. . . .

(The statute then spells out certain very limited, mostly agricultural, exceptions to this prohibition, a quick review of which suggests that none would apply to an agency receiving a federally-funded Community Services Block Grant, or any of the other forms of the federal financial assistance that underscore the funding of the NHCAC.)

Under Chapter 4 of the Ethics Manuel, he would have found a section entitled, USE OF OFFICE FOR PERSONAL GAIN, containing, among others, the following specific ethical prohibitions:

* Members may not enter into or enjoy benefits under contracts or agreements with the United States.

* Members and employees should not engage in any business with the Government, either directly or indirectly, that is inconsistent with the conscientious performance of governmental duties.

* Members and employees may not receive any compensation nor allow any compensation to accrue to their beneficial interests from any source, the receipt of which would occur by virtue of influence improperly exerted from a position in Congress.

* Members and employees of the House should never discriminate unfairly by the dispensing of special favors or privileges to anyone nor may they accept benefits under circumstances that might be construed by reasonable persons as influencing the performance of governmental duties.

* Members and employees should never use any information received confidentially in the performance of governmental duties as a means for making private profit.

So, I suppose there are at least one or two fair questions that can be asked of readers at this point:

Suppose you were then-Congressman Robert Menendez, back in 1994, and you were considering entering into a lucrative lease arrangement whereby you were going to rent space to a federally-funded organization in your district. But, you came across the above provisions, among many others, of the Congressional Ethics Rules, including the specific references to the federal criminal law.

Would you have first asked for a written opinion as to whether such an arrangement was legal, or would you have just moved full steam ahead and signed that lease?

And, another fair question, I suppose, would be this:

Once the U.S. Attorney recently became aware of the lease arrangements then-Congressman Menendez had had for nearly a decade with a federally-assisted agency, should he have just ignored them and failed to initiate an inquiry into those dealings?

Should he have just refused to subpoena the records of the NHCAC and said, like one columnist for the Star-Ledger wrote the other day . . . but, hey, this is N.J.!