As we get learn more about the indictment of Senator Robert Menendez, it’s worth remembering that virtue has long been one of the cardinal values of functioning democratic states.
Almost three hundred years ago, the French political theorist Montesquieu declared:
There need not be much integrity for a monarchical or despotic government to maintain or sustain itself. The force of the laws in the one and the prince’s ever-raised arm in the other can rule or contain the whole. But in a popular state there must be an additional spring, which is virtue.
Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws, trans. Anne M. Cohler (Cambridge; New York: Cambridge University Press, 1989), 22.
In effect, Montesquieu was arguing that monarchies and despotic states could rely on power, but because citizens in democracies simultaneously govern and are governed, democratic states had to rely on virtue. Citizens must be able to trust those who make decisions, and that trust is built on the virtue of those who hold public office.
The challenge of republican government was that virtue is always fragile, precarious, ephemeral—and the erosion of virtue undermines the very foundations of the democratic state.
When that virtue ceases, ambition enters those hearts that can admit it, and avarice enters them all. Desires change their objects: that which one used to love, one loves no longer. One was free under the laws, one wants to be free against them. Each citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity, what was a rule is now called constraint; what was vigilance is now called fear.
Montesquieu, 23.
Robert Menendez is the incarnation of that erosion. Last week we heard that Senator Menendez had been indicted. Again. Six years ago, he was in court to fight another indictment. As CNN reported at the time, he was accused of accepting more than $600,000 in political contributions, a luxurious hotel suite at the Park Hyatt in Paris, vacations in the Caribbean, and free rides on a private jet from a rich eye doctor. To the chagrin of federal prosecutors, Menendez beat the rap—not by acquittal, but because the jury deadlocked.
Despite the narrowness of his escape, Menendez painted the government as the villain and cast himself as the powerless victim of a two-tier system that favors the rich.
I understand now better why many Americans feel that justice is elusive… But for supporters from across the country and New Jersey … I could never have afforded the opportunity to defend myself and the millions that it has cost. That being said, it’s the system of justice not that I thought it was. It’s the system of justice you can afford.
Politico, November 17, 2011. “Menendez: Hung jury sent ‘a powerful message to the government.’”
The new indictment paints a very dark picture. It accuses Menendez of taking cash, a luxury car, and bars of gold. What for? Astonishingly, he’s accused of helping a foreign government: the brutal dictatorship of Egypt.
Among other actions, MENENDEZ provided sensitive U.S. Government information and took other steps that secretly aided the Government of Egypt.
What makes this so damning is that Menendez was Chairman or Ranking Member of the Senate Foreign Relations Committee, which gave him, as the indictment points out, “substantial influence over foreign military sales and foreign military financing to Egypt.”
It doesn’t end there. Prosecutors accuse Menendez of having used his influence to derail criminal investigations in New Jersey and also having attempted to influence federal prosecutions. Again, pretty bad stuff.
This is the avarice of which Montesquieu warned: if the charges are true, self-interest and greed have replaced the notion of public service.
And in the argument that he deploys against the prosecutors, we see that Menendez was to be free against the laws.
Menendez is entitled in law to the presumption of innocence, a point he (and his shrinking band of supporters) make forcefully and repeatedly. And he points to what he calls his “acquittal” in 2017 as evidence that the government is out to get him.
But here is where Menendez is doing something really slippery: he (and his dwindling band of supporters in the Democratic Party) deliberate conflate two distinct questions:
a) whether he is whether he is guilty beyond reasonable doubt (the criminal standard), and
b) whether he should resign his Senate seat.
It suits Menendez to argue that the presumption of innocence covers his role as a Senator. After all, if he didn’t do anything wrong, then why should he quit? And, separately, shouldn’t the voters of New Jersey have the right to determine who represents them?
This argument is as destructive to our democratic institutions as the alleged corruption and avarice that got him indicted.
Menendez would have us forget that not being found guilty is different from being innocent. But that’s not the really important point.
At the moment that Menendez makes the argument that the legal presumption of innocence carries with it the presumption that he has an entitlement to his office, he has made a corrupt argument. He (deliberately) conflates his personal interest in holding office with the supposed public interest of having him as Senator.
When plausibly charged with a crime, the Senator has lost legitimacy. Failing to be convicted is a low bar; demonstrating real virtue is high one. And the core of virtue must be selflessness — putting the interests of the republic ahead of one’s own interest. Virtue isn’t merely doing what one is legally obligated to do or not doing what is illegal; political virtue, at its most basic, consists of acting in the common good.
Holding public office is not an individual right; public office is an honor and carries with a heightened responsibility. Public office, whether elective or appointed, is about public service. Our system depends on the rectitude of public servants; indeed, our system depends on the real virtue of those public servants.
Menendez must go; a virtuous person would have resigned long ago.
But what is also important is that the Democratic Party recognize that its strength and its importance does not come merely from holding office; its strength comes from its virtue. At a time when the nation is faced by the specter of a political party that has entirely abandoned the notion of truth, transparency, and decency, it is all the more important for those who believe in the democratic experiment to hold themselves and their colleagues to the highest possible standard.
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