NEWARK — Prosecutors alleged on Tuesday in the ongoing corruption trial of Sen. Bob Menendez that the senator spoke with then Health and Human Services Secretary Kathleen Sebelius in 2012 on behalf of co-defendant Salomon Melgen, the wealthy donor that prosecutors say bribed Menendez with lavish gifts and campaign donations.
According to an August 2009 e-mail admitted into evidence on Tuesday, Menendez told his chief of staff, Danny O’Brien, to determine “who has the best juice at CMS [Centers for Medicare and Medicaid Services] and Department of Health.” At the time, Melgen was facing a Medicare billing dispute with CMS and was allegedly steering campaign cash to Menendez so that the senator would lobby health officials on his behalf in Washington.
An ophthalmologist by trade, Melgen was later convicted of defrauding Medicare. At the time CMS was investigating his billing practices in 2012, Melgen allegedly had overbilled Medicare $8.9 million by splitting the contents of a single vial of Lucentis, a drug used to treat macular degeneration, into multiple doses even though the FDA had labeled each vial for one use. Melgen would then charge Medicare for each dose as if it were a new vial of the drug. Earlier this year, he was convicted on those charges in a separate trial.
In 2012, Menendez met with Sebelius to discuss Medicare billing issues but the senator never mentioned Melgen directly in conversations with HHS officials, Sebelius testified last week. Defense attorneys say that while the prosecution used Menendez’s email to demonstrate that the senator was acting on Melgen’s behalf, Menendez was concerned with the Medicare billing issues as a general matter and not because of Melgen’s particular case.
Defense attorneys also argued that HHS has no direct authority over CMS, meaning that Menendez’s meeting with Sebelius could not have resulted in direct or definitive action on the matter. But in a 2011 email admitted into evidence on Tuesday, Melgen lobbyist Alan Reider said he believed that Sebelius’s potential agreement on the matter would be influential in CMS. Melgen forwarded Reider’s email to Menendez.
The Menendez trial largely has relied on email evidence, many of them read in court by FBI agent Alan Mohl, who made his fourth appearance in the courtroom as a witness on Tuesday.
“I am seeing you more than I am seeing my family,” Menendez attorney Abbe Lowell told Mohl when he began cross-examination.
Lowell made a sustained objection to prosecution’s strategy, claiming that because Mohl has no direct connection to any of the emails in question, he is not an appropriate witness to be reading the emails into evidence. Mohl saw the emails as part of the FBI’s investigation, Lowell argued, not because he was one of the parties involved in their drafting.
Judge William H. Walls allowed Mohl’s testimony to continue despite Lowell’s objections but did not allow the government to ask him questions about a news story that appeared in the Washington Post in 2012, noting that Mohl had no connection to the piece and that neither Walls nor the jury had read the story in question.
“I don’t know why I should let this witness say something he has no right to say,” Walls said.
The Menendez trial is now in its sixth week, and unlike the Bridgegate trial that featured frequent revelations and fresh testimony, the Menendez proceedings have been defined mostly by disagreements between attorneys about what evidence is admissible, detailed readings of email chains and Walls regularly dismissing jurors to discuss the finer points of the law with attorneys.
The court is in session only for two days this week, and the trial continues on Wednesday.