October 5, 2017 - 5:22 pm
Prosecutors in the bribery trial of Sen. Robert Menendez, D-N.J., don’t plan to call former Senate Majority Leader Harry Reid as a witness in their case, despite his presence at a key meeting in the corruption case, according to people familiar with the matter.
The decision not to call Reid as a witness reflects the likely double-edged nature of his testimony. Though Reid, a Nevada Democrat, was a participant in a meeting in which Menendez pressured federal health officials to be more considerate of a longtime friend and major donor, Reid has also publicly praised Menendez, even after being drawn into the investigation.
It’s unclear if Menendez’s legal team might call him as a defense witness.
By not calling Reid, prosecutors apparently hope that jurors will be convinced by the accounts of others who were at the meeting, including former staffers and former health and human services secretary Kathleen Sebelius, who testified Tuesday.
Menendez is on trial in federal court in Newark, N.J., where prosecutors are expected to wrap up their case in the next week or two.
Reid retired in January, ending a 34-year career in Congress during which he relished a reputation as a highly unpredictable speaker. Even his closest advisers acknowledged that sometimes when he went speak on the Senate floor, or before the press, they were never certain what he would say – a penchant that served him well on Capitol Hill but one that makes any appearance on the witness stand a high-risk endeavor.
Menendez, a powerful Democratic senator who once chaired the Foreign Relations Committee, is accused of using his office to do corrupt favors for a Florida eye doctor, Salomon Melgen. Prosecutors say that Melgen gave the senator private jet flights, a luxury hotel stay, and hundreds of thousands of dollars in campaign contributions, and in return the senator helped the doctor lobby the government on business and personal issues.
One of those efforts involved an $8.9 million dispute over how Melgen billed Medicare for applications of an eye drug. Sebelius testified that at an August 2012 meeting with Menendez and Reid in the then-majority leader’s office, Menendez tried to convince her to change the billing policy that could cost Melgen millions of dollars.
“I don’t know exactly what [Menendez] wanted, just that he wanted me to do something,” Sebelius, a Kansas Democrat who led HHS from 2009 to 2014, testified. “My definite impression was that he was very concerned that the policy was inconsistent and unfair and something should be done.”
After meeting for about 30 minutes, Sebelius declined to take action, explaining that she thought the policy was consistent and clear and in keeping with safety protocols.
Menendez’s lawyers have argued that he voiced concerns about a national policy issue – an appropriate action for someone with congressional oversight duties, and that he didn’t even bring up Melgen’s name during the meeting.
The meeting in Reid’s office is a central part of the government’s case against Menendez.
Sebelius testified that she turned down an earlier request from Menendez to meet about the issue and didn’t agree to talk to him until Melgen’s appeal of the case was no longer before her agency.
She said she was surprised when Reid set up the meeting.
“It was unusual for Senator Reid to ask me to come to a meeting involving another member of Congress,” Sebelius said, adding it was the only time she could recall a member of Congress asking her to discuss a specific Medicare or Medicaid billing policy.
By the time they met in Reid’s office, Menendez had already tried and failed to get then-Sen. Tom Harkin, D-Iowa, a committee chairman, to help with the issue. Prosecutors did call Harkin to testify against Menendez, but his account was a mixed bag – he called his meeting with Menendez a “courtesy” often extended to fellow lawmakers.
Calling Reid as a witness against Menendez could have posed similar challenges for prosecutors. Back in 2015, after Reid was interviewed by the FBI but before Menendez was indicted, Reid publicly praised the senator, saying Menendez “has done a stellar job as chair of the [Foreign Relations] committee, and as far as I am concerned, he’s been an outstanding senator.”
At issue in the meetings was Melgen’s practice of splitting single vials of the drug into multiple doses and billing Medicare for more than one vial. The agency ended up coming after him, demanding repayment of $8.9 million.
Menendez himself at the meetings argued that Medicare policy allowed for the multi-dosing of another similar eye drug.
An earlier trial witness, Jonathan Blum, a former federal health official who attended the 30-minute meeting, testified that he didn’t recall Menendez or Reid making a specific request during the meeting, but he remembered Reid expressing frustration to Sebelius and stating that the Medicare billing policy “doesn’t make any sense.”
Reid was the only person at the meeting who brought up Melgen specifically, Blum said.
After the meeting, Menendez said he would use the “full power” of his seat on the Senate Finance Committee to get the answers he was seeking, Blum said.
The seven-woman, five-man jury will be called upon to untangle a web of gifts and campaign contributions to determine whether they amounted to bribes. The trial, now in its fifth week, is taking place against the backdrop of recent rulings in similar cases that have narrowed the definition for what qualifies as an “official act” by a politician.