An Escape Hatch for the Hudson Landlord?

Today, November 4, 2006, the Star-Ledger’s lede in a Josh Margolin story on the New Jersey Senate contest between Bob Menendez and Tom Kean, Jr. was as follows:

Heading into the final weekend of their bitter and bruising race, Senate candidates Tom Kean Jr. and Robert Menendez each campaigned with a popular ex-politician yesterday, and continued their running argument over whether Menendez is under federal investigation.

So, the ongoing question is this: Is Bob Menendez under investigation, or has he been under investigation by the United States Attorney’s Office for his role as a Congressman in the rental or disposition (sale) of a building he owned, one that he was renting to a Community Action organization, the North Hudson Community action Corporation (NHCAC), an organization that was receiving federal funds as a substantial portion of their funding base, including funds that the Congressman himself helped them to obtain?

As we have noted previously, under Chapter 3 of the House Ethics Manual, applicable to Members of Congress, which was in effect at the time Bob Menendez entered into the lease agreement with the NHCAC back in 1994, where it specifically states:

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.
. . . .

But in spite of this specific prohibition Bob Menendez insists he is not under investigation for having entered into a lease with the NHCAC, one he maintained for nearly a decade. He reported the income but not the lease on his financial disclosure forms, accordng to press accounts.


A Pascrell Solution?

A potentially interesting take on the issue of whether he is under investigation, surfaced early Friday morning, November 3rd, at a monthly breakfast meeting New Jersey Business and Industry Association (NJBIA) Employers’ Legislative Council (ELC) meeting held at the Hanover Marriot on Route 10 in Morris County.

Two Trenton lobbyists and political party activists, William Pascrell III, a Democrat, and C. Richard Kamin, a Republican, each informally discussed the Senate contest with a group of approximately 30-35 attendees, on their respective partys’ perspectives on last minute issues in the United States Senate race between Bob Menendez and Tom Kean, Jr. The assembled group included Morris area business and political leaders, including two current Morris county State legislators, Senator Anthony Bucco and Assemblyman Guy Gregg, and former Senator Leanna Brown, as well as a Democrat Morris County freeholder candidate.

During that discussion, the issue of the allegations regarding the investigation of Menendez arose, and Pascrell related a story concerning a political race his father, Congressman Bill Pascrell, Jr., was involved in some years ago, when allegations surfaced suggesting his father was under investigation. Those allegations apparently arose because the senior Pascrell had been the Mayor of Paterson, NJ (as well as a New Jersey Assemblyman).

The younger Pascrell, an attorney, told the crowd how, at the time, he simply contacted the U.S Attorney’s office and to spoke with Faith Hochberg, then the United States Attorney for the District of New Jersey. According to two attendees at the breakfast, Pascrell said that Hochberg, a Clinton appointee, and now a federal judge, would not discuss it directly with him, but referred Bill to whoever the lead person was on the matter.

And both confirmed that Pascrell said he was able to obtain a short three line official letter, simply and unequivocally stating that his father, William Pascrell, Jr., had not been, and was not currently under investigation for any violations of law by the U.S. Attorney’s office. Bill Pascrell produced the letter at the next debate, and the issue was over.

If Bob Menendez wants to clear up the matter, he has that precedent to go by.


The Inconsistencies

His problem is compounded by the fact that his answers on several issues related to the lease deal have been less than forthcoming, and inconsistent throughout the campaign.

For example, as we have noted in detail (link above), when the issue first arose, he said he had obtained verbal waiver from someone connected to the House Ethics Committee. When pressed a few weeks later to identify the person, he named Mark Davis, former counsel to the committee, who died last year. But when Roll Call revealed that Davis left the Committee a year before he would have been asked, Menendez backed down, and has yet to provide a satisfactory explanation of the matter, including explaining why he would have asked for a verbal waiver or opinion in the first place. House Ethics Rules specifically state that only written opinions carry any weight in protecting the member from ethics charges.

And, our friends over at Enlighten-NJ have recently pointed out a huge contradiction in Bob’s versions of events over time:

1996 Excuse:

"Menendez said he had no hand in arranging the lease, which was handled by a real estate agent and lawyers for the North Hudson Community Action Corp., and did not realize his building would be housing a federally funded agency until after the deal was done." -- Jersey Journal - 1996

2006 Excuse:

"Menendez said he didn't see any conflict of interest in the rental arrangement because the House ethics committee gave him a verbal green light before the lease agreement was finalized. He also argued that he rented the property at below-market rates." -- Philadelphia Inquirer - 2006

(links to stories in original at Enlighten-NJ)

The contradiction is manifest: Ten years ago Bob Menendez said he had no hand in the rental at all; he said didn't realize that it would be rented to a federally-funded agency until afterward.

Well, if that was so, what possible reason would he have had to seek an opinion, verbal or otherwise, in 1994 on whether the proposed rental of the building was ethical?

Both of those things cannot possibly be true. One or the other might be true, or both could be false. But both of them cannot possibly be true.

This and other contradictions in the many Menendez versions is exactly why Bob is having credibility problems. The stories just do not make sense.

Here is another inconsistency of somewhat comic proportions. A few weeks ago, it was reported that prominent criminal defense attorney Joseph Hayden made a call on behalf of Bob’s campaign to the U.S. Attorney General’s Office. But Bob vehemently denied that he had hired Hayden as an attorney.

But the whole issue turned topsy-turvy when the Star-Ledger suddenly revealed on Friday in a story by Jeff Whelan and Josh Margolin, that Marc Elias, another prominent criminal attorney had been hired by Menendez.

But today, in a Jonathan Tamari story in both the Asbury Park Press and the Courier Post it is reported that:

Menendez said Elias made one phone call to the U.S. Attorney's Office regarding the investigation and was told the office did not need anything from the campaign. Menendez said that response shows he is not the subject of a criminal investigation.

And Elias, it seems, is not talking.

Just last week, Matt Miller, the spokesman for the campaign, told the Star-Ledger in a story filed by Deborah Howlett, that as a favor "for the campaign," Joseph Hayden had called the U.S. Attorney’s office.

Hayden was doing a "favor" for the campaign, Menendez spokesman Matt Miller said, not personally representing Menendez. Miller declined to say who in the campaign reached out to Hayden and asked him to make the call, except to say it was not Menendez.

"We were trying to find out what was going on," Miller said of tapping Hayden. "We were just looking to find out in the midst of all these rumors what the facts were."

Miller declined to say what the campaign gleaned from Hayden's conversation with federal authorities. "I'm just not going to go there," he said.

So, we know two things, at least according to the Menendez campaign.

1. The "campaign" does not, or, at some point did not know what the facts were. Hence, some unnamed person in the campaign asked a prominent criminal attorney Joseph Hayden, as a favor, to call the U.S. Attorney and ask what the facts were. And if he did find anything out, the campaign is not telling the public what Hayden was told!

2. Bob Menendez has also hired another prominent criminal defense attorney, Marc Elias, who called the U.S. Attorney once to find out if they needed anything. And because Bob claims they said the did not, Bob says that proves he is not under investigation!

Did you get that? These explanations are laughable. They just don't make sense.


Time to Call Bill?

Maybe what they really should be doing over there at Menendez HQ is giving William Pascrell III a call, and have him contact the U.S. Attorney’s Office and ask them to sign off on a clear and unequivocal statement that Bob Menendez is not now, nor has he been under investigation for any violations of federal law related to that property.

And maybe one or another enterprising reporter should call the U.S. attorney and ask them this question:

If a prominent public figure wanted to clear his name due to false rumors that were circulating, and your office knew -- in spite of those rumors -- that the individual was not currently, nor had been under investigation by your office for any violation of federal law, would your office sign off on, or release a letter to that effect in response to a specific request to that effect from that person or his attorney?

It is hard to imagine the U.S. Attorney saying no to such a request, including in this case. That is, they would unless Bob Menendez indeed is under investigation.

Bob? Your move!