Department of Justice prosecutors conducting the federal investigation of Senator Robert Menendez (D-NJ) have yet to ask Federal District Court Judge Anne E. Thompson to hold a hearing to consider more detailed evidence to support its demand that Menendez’s legislative aide Michael Barnard testify for a grand jury, a source in the judge’s chambers tells Breitbart News.
Thompson ruled on November 25 that Barnard could not invoke the speech or debate clause of the Constitution, which he cited when he refused to answer 50 questions a federal grand jury posed to him about his communications surrounding meetings Sen. Menendez held on June 7, 2012 with Centers for Medicare and Medicaid Services Administrator Marilyn Tavenner and on August 2, 2012 with Sen. Harry Reid (D-NV) and Secretary of Health and Human Services Kathleen Sebelius.
Attorneys for Menendez and Barnard appealed that ruling, and on February 27 the U.S. Court of Appeals for the Third Circuit vacated the decision and remanded the case back to Judge Thompson for further proceedings.
But federal prosecutors have yet to provide Judge Thompson with additional information to support their original argument that Barnard should answer the grand jury’s questions.
The DOJ’s failure to press for a hearing before the District Court is puzzling, given press reports that indicate the statutes of limitation for some of the potential charges against Menendez may run out soon.
Article 1, Section 6 of the Constitution prohibits Members of Congress from being questioned about legislative acts or the motivation for such acts in any place but on the floor of the House or the Senate. In the 1970s, the Supreme Court extended that protection to legislative aides pursuing legislative matters on behalf of the sitting Members of Congress who employed them.
In their appeal briefs, attorneys for Menendez and Barnard argued that all of his communications, including those with Dr. Salomon Melgen’s attorney, surrounding his work surrounding Menendez’s June 7 and August 2 meetings was purely legislative.
Senator Menendez’s purpose in those meetings, DOJ prosecutors allege, was to persuade HHS officials to drop charges against Dr. Melgen that he had overbilled Medicare by $9 million. At the time, Menendez had not yet reimbursed Melgen $58,000 for travel on his private jet during 2011 and 2012.
The Court of Appeals ruled in its opinion that it could not evaluate the merits of Judge Thompson’s decision because the ruling did not provide a full explanation of the factual basis by which it determined that Barnard’s acts were not legislative.
As Breitbart News reported, the opinion was filed on February 27, 2015 “under seal,” but was inadvertently posted online. Before it was taken down, the New Jersey Law Journal downloaded the eight-page opinion, and reported extensively on its findings when it broke the story.
In that opinion, the Court of Appeals remanded the case “to the District Court to make specific factual findings about the communications implicated by the grand jury questions, especially the two Tavenner conversations, the Sebelius meeting, and discussions with [Melgen’s attorney] Reider before and after these conversations.”
“On remand,” the Court said, “the contents and purposes of each disputed communication must be separately analyzed to decide whether the evidence shows that it was a legislative act. This inquiry must involve careful analysis of the record evidence already before the District Court, including the contemporaneous emails, calendar entries, and notes related to each communication.”
“It may also involve either testimony or affidavits from the Senator or his staff about the contents and purposes of the communications,” the Court continued. “We leave to the District Court’s discretion whether to consider such testimony, affidavits, or any other new evidence about the contents and purposes of the purportedly protected communications in an in camera proceeding.”
“Finally,” the Court of Appeals said, “given the sensitive constitutional interests at stake, the parties have a responsibility to clearly identify the areas that remain in dispute for the District Court.”
“For the reasons set forth above, we will vacate the order of the District Court and remand the case for further proceedings consistent with this opinion,” the Court concluded.
It is unclear when, lacking a specific hearing of the parties involved, the District Court will analyze each separate communication to determine if it involves a legislative act, or when the District Court will incorporate those findings in a subsequent ruling on the issue of Barnard’s testimony.
It is possible that DOJ prosecutors and attorneys for Menendez and Barnard have reached a deal concerning Barnard’s testimony, thereby making the court proceedings on the claims of search or debate privilege moot.
Breitbart News reached out to DOJ prosecutor Peter M. Koski and DOJ public affairs spokesperson Peter Carr for comment on this story but has not received a response.
Breitbart News also reached out to attorneys for Menendez and Barnard but has not received a response.