The 53rd Republican Senator?

AP Photo/Seth Wenig

New Jersey Governor Chris Christie speaks during a news conference in Trenton. 

If Robert Menendez, the New Jersey Democratic senator who is set to go on trial for bribery and conspiracy next month, resigns or is expelled from office after August 31, the state’s governor, Republican Chris Christie, could appoint his successor. Assuming Christie would appoint a Republican (possibly himself), that would give the GOP an additional seat in a closely divided U.S. Senate where nearly every vote has been a cliff-hanger.

Should Menendez leave office by August 30, the vacancy would instead be filled in the state’s November 7 general election, since New Jersey law requires a special election to take place at the next possible general election unless that election is less than 70 days away. If Menendez leaves office after noon on January 16, the next governor—set to be elected on November 7—would be able to appoint his successor. That governor is likely to be Democrat Phil Murphy, who currently holds a commanding lead of 20 percent to 30 percent in opinion polls.

While New Jersey law states that the governor “may make a temporary appointment of a senator” even if a vacancy is filled quickly in an election, the political impact of Christie appointing a senator who would serve until November 2018 could be far greater than if he appointed a senator who served only one or two months, as would be the case if Menendez were to resign before August 30. Any senator appointed after August 30 would serve until December 2018, following the 2018 election, unless the appointing governor called a special election, a course of action that would be at the governor’s discretion. It is unclear if a new governor could call a special election even if a previous governor had already appointed a new senator. Division of Elections spokesperson Jennifer Stringfellow declined to answer the Prospect’s inquiries, citing state policies that forbid the issuing of legal advice. While New Jersey law lacks a provision that explicitly allows a special election being called after a temporary senator is appointed, there is also no provision that forbids it.

Christie could appoint himself if he so chose, an eventuality seen as likely, since he is term-limited out of the governor’s office on January 16 and, as the nation’s least-popular governor, with just a 15 percent approval rating, has limited prospects of attaining statewide office in an election. The governor’s two recent headline-generating forays were his family’s much photographed beach visit at a time when state government’s failure to pass a budget closed the beach to the general public, and his threatening a baseball fan with nachos.

A Republican appointee could prove critical to GOP efforts in the Senate, including any renewed attempts to cut the scope of health coverage and efforts to alter the tax code. One more Republican vote would have meant the bill to “repeal and replace” Obamacare would have passed. Then again, if a Republican appointee chose to run for a full term at the 2018 election or a special election, he or she might toe a moderate line. New Jersey has not elected a Republican to the Senate since 1972, and Menendez won his last re-election campaign by 20 percentage points.

Menendez’s trial is set to begin September 6, so the only set of circumstances that would lead him to resign before the August 31 cut off for a November vote on his successor would be if prosecutors offered and he accepted a plea deal. Attorneys for the senator had tried to get charges thrown out, arguing that the 2016 Supreme Court ruling in McDonnell v. United States, which set a higher bar for corruption convictions, invalidates the charges against the senator. Menendez stands accused of accepting lavish gifts and campaign funds in exchange for promoting the business interests of his friend Salomon Melgen, a Floridian physician who has already been convicted of fraud for improperly billing the government for more than $100 million in medical insurance payments. (Melgen’s sentencing has been delayed, pending Menendez’s trial, in which he is a co-defendant. While there has been speculation that he could strike a deal with prosecutors that would help win a conviction against Menendez, no indication of such an arrangement has yet surfaced.)

But Menendez contends that none of the actions he allegedly took, including pressuring then-Secretary of Health and Human Services Kathleen Sebelius on Melgen’s behalf and advocating for a Melgen-owned company with the Dominican Republic’s government, were “official acts,” a standard set in McDonnell last year. That ruling, revolving around corruption charges against Virginia’s former Republican Governor Bob McDonnell, found that the governor’s conviction was invalid because calling other public officials, setting meetings, and hosting events did not qualify as “official acts.”

U.S. District Court Judge William H. Walls opted not to rule on Menendez’s motion to have the government’s case dismissed on the grounds that his work on Melgen’s behalf did not amount to “official acts.” The judge ruled that the trial will move forward and the merits of the motion will be reconsidered after the government has presented its case. Menendez’s actions in a Senate Foreign Relations Committee hearing in 2012, in which the senator pushed officials from the departments of Commerce and State to take positions on a pending contract with the Dominican Republic that benefited one of Melgen’s companies, could be critical. Advocating for Melgen—who had given the senator lavish gifts and campaign funds—in an official setting like a committee hearing could meet a definition of “official acts” that phone calls or meetings might not.

“I don’t think the motion was frivolous … but the Supreme Court’s decision will probably need further decisions by the appellate court to pin down what ‘official action’ is,” Anthony Capozzolo, a former assistant U.S. attorney for the Eastern District of New York, says. Capozzolo was primarily assigned to the Public Integrity Section while he was a federal prosecutor.

“If he were bribed to cast a vote in a certain way, that would fall clearly under the federal bribery statute,” Capozzolo said. If Menendez exerted pressure through meetings or calls, however, that would be a gray area in the post-McDonnell era. “I’m sure the defense was not happy with the Court’s decision denying the motion, but I would be surprised if part of their strategy into the trial is not to try to shoehorn the government’s case in a way that makes it more likely that the definition of ‘official action’ becomes an issue. … I certainly think it will effect the way the defense handles witnesses during the trial because I think they’ll want a record to base a motion on if there’s a conviction.”

Prosecutors could offer Menendez a deal before the trial, and that would likely require him to step down. If such a deal were accepted by August 30, Christie would not have the chance to appoint a successor. Capozzolo says that Menendez’s trial is unlikely to last more than a month. Following any conviction, Menendez’s attorneys could re-submit a motion based on McDonnell, and Judge Walls could take a lengthy period to consider any ruling if he felt it held merit.

While most senators convicted of crimes have resigned immediately, Menendez, rather than hand the seat over to the GOP, may well prove the exception to this rule. Consideration of a post-trial motion to vacate could result in Menendez holding onto his seat for a longer period, and should the judge not vacate a guilty verdict, Menendez could still appeal to higher courts over the applicability or meaning of McDonnell.

Even if such motions were rejected, there would be no requirement for Menendez to step aside, which could open the possibility that Senate Republicans would move to expel him. By forcing a vote on Menendez’s expulsion while Christie is still governor, the GOP could not only pick up one additional colleague, but also put Democrats in a politically embarrassing situation.

Expulsions are rare. The last attempt to expel a sitting senator came in 2011, when Nevada Republican John Ensign resigned before a final vote could be taken on expulsion. The last successful expulsions were in 1861 and 1862, when numerous senators were expelled for supporting the secession of their states into the Confederacy. The only successful expulsion not related to the Civil War was that of William Blount in 1797. A Democratic-Republican from Tennessee, he was expelled for attempting to incite a military action by Creek and Cherokee tribes to assist Britain in an invasion of Spanish-controlled Florida.

Prosecutors are more likely to offer a deal if they think they could lose during the trial itself or if they believe the case could be overturned, possibly due to an appeal based on McDonnell, Capozzolo says. “They know what risks they may have,” he says. “If they view their evidence as very clear that it crosses the lines of official action … then they may be confident enough that they’re not concerned about it [an agreement].”

Even if Menendez is exonerated—or if a conviction is vacated for another reason—his trials and tribulations may not be done. He is up for re-election in 2018, and, while he has expressed an intention to run again, New Jersey Democrats may smell blood in the water. Menendez has appeared scandal-prone since right-wing media outlets paid three women to claim they had had sexual relations with Menendez in 2012, while they were underage, according to interviews with the women conducted by Dominican Republic police that revealed they had been paid off.

Menendez is one of the least-popular senators in the country, possibly due to his legal issues. A Morning Consult poll found that just 40 percent of New Jersey voters approve of his job performance, the third-lowest in the nation. Though no prominent Democrats have filed to run against Menendez in the primary, speculation has arisen that at least half a dozen key figures in the party—including four current or former House members, a former senator, a former governor, and the president of the state Senate—could challenge him. 

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