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Saturday, January 20, 2018

Why Menendez Retrial May Not Be Playing Politics

Senator Robert Menendez will be re-tried on federal bribery charges in 2018. A schedule of proceedings leading up to the second trial will begin to develop in the coming weeks, now that the federal government has notified the federal court (District of New Jersey) of its intent to retry the sitting senior Senator from New Jersey.

Some contend that the Department of Justice should not "play politics" by retrying Menendez. There is some basis for this contention. DOJ generally tries not to make prosecutorial decisions (that is, whether or not to charge someone) during a campaign season. See my 2016 analysis and a DOJ memo from 2007 which I link to in an earlier article I wrote two years ago. 

What's different now?

1. The DOJ prosecutorial decision was made in 2015, when a grand jury indicted him. 

2. The DOJ prosecutorial decision now to re-try him only follows the earlier decision. While it's still a decision to move forward with a second trial, the opposite decision to not retry him, if on account of his status as a candidate and existing officeholder, would also be by necessity a decision rife with political considerations. Does one's status as an elected official confer immunity? No, of course not. 

Therefore, it's proper to move forward with a retrial, because the original and potentially politically sensitive charging decision was made three years ago.


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