The dam is breaking when it comes to Democrats urging Sen. Bob Menendez (D-N.J.) to resign. They responded with cautious silence Friday after the Justice Department announced Menendez’s indictment on bribery charges; by Tuesday, at least 18 Democratic senators, and many other party leaders, had called for him to step down. But perhaps predictably, Republicans pushed back Tuesday.
Sen. Tom Cotton (R-Ark.) delivered the moment some had wagered might come from Donald Trump: He urged Menendez not to resign by citing the idea that this was the same Justice Department that had secured two of Trump’s indictments and couldn’t be trusted. Sen. Marco Rubio (R-Fla.) later echoed the sentiment.
The GOP defenses of Menendez are obviously somewhat self-serving, but they are also clarifying.
“The charges against Senator Menendez are serious and troubling,” Cotton said. “At the same time, the Department of Justice has a troubling record of failure and corruption in cases against public figures, from Ted Stevens to Bob McDonnell to Donald Trump to Bob Menendez the last time around.”
Cotton added that Menendez “should be judged by jurors and New Jersey’s voters, not by Democratic politicians who now view him as inconvenient to their hold on power.”
Rubio later added that “in America guilt is decided by a jury, not politicians in fear of their party losing a Senate seat.”
It’s a professed standard that, of course, makes rhetorical sense from a party clinging to the presidential candidacy of a man who has been indicted four times. Republicans could compare the evidence against Menendez to the evidence against Trump and argue that Menendez’s is more clear-cut. But that would involve actually addressing the merits of the cases against Trump, which the GOP avoids. Better to throw a blanket over it and say indictments aren’t disqualifying, no matter the content.
(Indeed, Republicans have gone quite a bit further than that; just about all of their leading presidential candidates have said they will continue to support Trump even if he’s convicted. Even a conviction wouldn’t be disqualifying.)
There is also some truth to Cotton’s argument that the Justice Department’s prosecutions of major political figures have left plenty to be desired.
But the examples he cited reinforce a key distinction Democrats have sought to draw — that it’s not just about provable guilt; it’s about the public trust.
Former Virginia governor Robert F. McDonnell (R), whom Cotton mentioned, might be a case in point. The Supreme Court overturned his corruption conviction in 2016, and he is thus often cited by Trump’s defenders as a victim of overzealous prosecutors.
But in overturning McDonnell’s conviction, Chief Justice John G. Roberts Jr. took care to make clear that the court wasn’t legitimizing his conduct.
“There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote, citing the “tawdry tales of Ferraris, Rolexes, and ball gowns” included in $175,000 worth of gifts and loans McDonnell took from a Virginia business executive.
Roberts added at another point: “None of this, of course, is to suggest that the facts of this case typify normal political interaction between public officials and their constituents. Far from it.”
Instead, the court ruled narrowly that the definition of “official acts” used for what McDonnell allegedly gave the businessman in exchange was too expansive. (The government could have retried McDonnell, but it opted not to.)
The court was effectively raising the bar for corruption convictions. And that raised bar later loomed over the Justice Department’s initial, unsuccessful prosecution of Menendez in 2017 — just as it will loom over this one.
But it’s also true that provable crimes aren’t the standard for disqualification. Just as the impeachment standard of “high Crimes and Misdemeanors” doesn’t literally mean criminal acts, the standard for congressional expulsion is broad. The Supreme Court has indicated that a chamber’s expulsion power “extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.”
While in modern times Congress has expelled only members convicted of crimes, that’s in part because members facing possible expulsion chose to resign. That was the case with Sen. Bob Packwood (R-Ore.) in 1995 and Sen. John Ensign (R-Nev.) in 2011.
The allegations against Menendez also aren’t merely about bribery, gold bars and half a million dollars in hidden cash. Arguably the most relevant parts of them, when it comes to whether Menendez is fit to serve in the near term, deal with his alleged assistance of Egyptian interests.
As I wrote when he was indicted last week:
Whether these alleged acts were part of a quid pro quo in which these interests enriched Menendez is the key legal question; whether the chairman of the Senate Foreign Relations Committee should be engaging in such alleged actions with Egyptian interests is quite another. That gets at the distinction between criminal acts and losing the public trust.
And that’s something Democrats have been careful to emphasize. Almost to a member, those calling for Menendez to resign have emphasized that he should get his day in court and is presumed innocent. But they say the allegations are such that he can no longer serve.
Even as Cotton was weighing in Tuesday, Sen. Cory Booker (D), Menendez’s New Jersey colleague, made this point while delivering perhaps the most significant resignation call yet.
“A jury of his peers will make the ultimate decision as to whether he is criminally guilty,” Booker said. “There is, however, another higher standard for public officials, one not of criminal law but of common ideals. As senators, we operate in the public trust. That trust is essential to our ability to do our work and perform our duties for our constituents.”
Booker added: “The details of the allegations against Senator Menendez are of such a nature that the faith and trust of New Jerseyans as well as those he must work with in order to be effective have been shaken to the core.”
This is ultimately how the two parties are going to come down on such things. Because Republicans believe standing by Trump is politically necessary, because they really wanted Roy Moore to hold a key Senate seat, and because they need the vote of Rep. George Santos (R-N.Y.) in a tightly divided House, they are going to hold off as long as possible in passing judgment on these or any similar allegations, regardless of whether they have resulted in indictments. Democrats, meanwhile, are going to try to lead by example in policing their own, as they ultimately did when Sen. Al Franken (D-Minn.) resigned.
And just as so many partisan differences have been exacerbated in the Trump era, so too will be the standard for holding colleagues accountable.