Sen. Robert Menendez Convicted On All Counts
Facing Senate Expulsion & Significant Jail Time
Earlier today, Sen. Robert Menendez (D-NJ) was convicted on all 16 counts in US District Court for the Southern District of New York. I appeared on WCBS Newsradio 88 to discuss.
Here is a FAQ.
Will Sen. Menendez Be Allowed To Serve Out The Remainder Of His Term?
Almost certainly not. Senate Majority Leader Chuck Schumer (D-NY), who had previously refrained from calling for Sen. Menendez to resign, called for that resignation immediately after the verdicts were announced. If Sen. Menendez does not voluntarily resign, Sen. Schumer will almost certainly quickly arrange a vote on his expulsion.
If Sen. Menendez Is Forced Out, What Happens To His Seat?
Under New Jersey law, Gov. Phil Murphy (D) will have the authority to name an interim Senator, which would keep the partisan balance at 51D - 49R. Gov. Murphy could appoint a caretaker Senator (as Gov. Christie did in appointing Jeff Chiesa after the death of Sen. Frank Lautenberg). More likely, Gov. Murphy would name Rep. Andy Kim (D) to fill the seat. Rep. Kim is already the Democratic nominee for the Senate seat, and a strong favorite to win in November. Early appointment to the seat would allow Rep. Kim to gain seniority over other first-time Senators who win election in 2024.
When Will Sen. Menendez Be Sentenced?
Sentencing has been scheduled for October 29.
What Is The Maximum Sentence That Could Be Imposed?
As my friend Ken White has frequently written, this is the wrong question to ask. Adding up the maximum sentences on the 16 counts of conviction leads to a figure that does not provide a realistic statement of the actual sentences that Judge Sidney Stein will consider.
What Sentence Will Be Imposed?
Although Judge Sidney Stein has complete discretion on what sentence to impose, he is required to consult the calculations under the United States Sentencing Guidelines. By my calculation, the likely Guidelines Range for Sen. Menendez will be 188 - 235 months.
How Did You Get To 188 - 235 Months?
Because the most serious counts of conviction were under 18 U.S.C. Section 1951, the applicable Guideline is Section 2C1.1
Because Sen. Menendez was a “public official”, the starting level is 14.
Because the offense involved “more than one bribe or extortion”, the level is increased by 2 (14 + 2 = 16)
Because the value of the payments was between $550,000 and $1.5M, the level is increased by 14 (16 + 14 = 30)
Because the offense involved “an elected public official”, the level is increased by 4 (30 +4 = 34)
Because the defendant was an organizer/leader of a multi-defendant conspiracy, the level is increased by 2 (34 + 2 = 36).
It is possible that the Guideline Offensive Level could be higher if the Court imposes points for (i) obstruction of justice (+2) and/or (ii) abuse of position of trust (+2).
At offense level 36 and with no prior criminal convictions, the Sentencing Guidelines range is 188 - 235 months. (15 years, 8 months - 24 years, 7 months).
Does Judge Stein Have To Impose The Guidelines Sentence?
No. The Supreme Court has held that the Sentencing Guidelines range is “advisory”, not “mandatory”. So long as Judge Stein explained any deviation from the Guidelines range, he has the discretion to impose sentence as he sees fit.