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Lawyer in Sen. Menendez corruption case grilled by appellate judges

Sen. Bob Menendez, D-N.J., speaks to reporters during a news conference in Newark, N.J. on Friday, March 6, 2015. A person familiar with a federal investigation says the Justice Department is expected to bring criminal charges against the New Jersey Democrat in the coming weeks. Menendez says that he has always behaved appropriately in office. (AP Photo/John Minchillo)

Sen. Bob Menendez, D-N.J., speaks to reporters during a news conference in Newark, N.J. on Friday, March 6, 2015. A person familiar with a federal investigation says the Justice Department is expected to bring criminal charges against the New Jersey Democrat in the coming weeks. Menendez says that he has always behaved appropriately in office. (AP Photo/John Minchillo)

An attorney for indicted Sen. Bob Menendez faced a skeptical trio of appeals court judges Monday as he argued that corruption charges against the longtime congressman should be tossed because of a constitutional clause that protects the actions of sitting lawmakers.

Abbe Lowell argued before the 3rd U.S. Circuit Court of Appeals panel that Menendez's meetings with government officials, including then-Health and Human Services Secretary Kathleen Sebelius, were held to discuss policy matters and not to benefit a wealthy friend. Prosecutors allege that the friend, Florida ophthalmologist Salomon Melgen, plied Menendez with gifts and campaign donations in exchange for political influence.

Menendez, who has been a congressman since the early 1990s and a senator since 2006, and Melgen were charged last spring with multiple counts of bribery and honest services fraud. Both have pleaded not guilty.

Lowell hammered at a lower court judge's ruling not to dismiss charges against Menendez — the source of this appeal — by claiming the judge erred in looking at Menendez's purported motives for meetings he set up with several government officials.

How the court — and a jury, if the case goes to trial — places Menendez's actions in the context of the Constitution's "speech or debate" clause will play a significant role in whether the Democrat is convicted on any of the dozen counts against him.

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The clause dates to the 1780s and was written into the Constitution to fortify the separation of powers between the three branches of government and protect members of Congress from having their legislative acts subjected to scrutiny by the other two branches.

Judge Thomas Ambro cut right to the chase as Lowell began Monday.

"It looks as if the senator was doing constituent services," he said. "Nothing wrong with that, but it doesn't give you the shield of the speech or debate clause."

Lowell argued that since Menendez's actions were legislative in nature, court precedent prohibits prosecutors from probing his motives or purpose. Prosecutors disagree, and contend Menendez's meetings, while they may have covered some general policy issues, fall into a gray area that allows inquiry into his intentions.

The only way to assess those kinds of cases is to look at "what the senator was trying to achieve," prosecutor Peter Koski told the judges. Koski said the lower court ruling was based on a review of interviews, emails and other communications between Menendez and his staffers and between government officials and their staffers, and showed Menendez was lobbying for Melgen in a Medicare dispute and a contract for port security in the Dominican Republic.

Lowell said the lower court's focus should instead have been on the "content of the contact," or what happened in the meetings, which he said showed Menendez discussed port security and Medicare policy issues that were part of his legislative duties.

"What happened in the room were high-level policy discussions," he said.

Lowell also attacked the government's case for purportedly not providing clear evidence of a bribe from Melgen — the quid in any quid pro quo — but attempting to criminalize the alleged legislative acts, the meetings.

"This is the first time where it is the legislative act that forms the quo," he said.

The appeals court is expected to take several weeks to rule on the case. Whichever way it rules, the losing side is expected to appeal to the U.S. Supreme Court, which could take several more months to decide whether to consider it.

Since his indictment, Menendez has continued to be active in the Senate, and recently had legislation he authored that imposed sanctions on North Korea signed into law.

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