Source: Prosecutors won’t call Reid to testify in Menendez case

Prosecutors do not plan to call former Senate Majority Leader Harry Reid as a witness in their case against New Jersey Democratic Sen. Bob Menendez, a source familiar with the matter tells CNN.

The trial against Menendez ended its fifth week Wednesday as a former Reid aide testified about a 2012 meeting between Menendez, Reid and other federal officials that is a key part of the bribery case against the New Jersey senator.

Kate Leone, a former Reid aide, told jurors there was “confusion” about the purpose of the meeting. At the same time, there were certain “ground rules” that prohibited Menendez from specifically raising his friend’s — Dr. Salomon Melgen — ongoing multimillion-dollar dispute with Medicare in the meeting.

Prosecutors have framed the 2012 meeting as an effort by Menendez to advocate on behalf of Melgen, who was facing an $8.9 million repayment demand from the Centers for Medicare and Medicaid Services over his billing practice for the eye drug, Lucentis. Prosecutors say Menendez accepted political donations and other perks from Melgen in exchange for the senator’s assistance with the dispute — allegations the two men deny.

Department of Health and Human Services officials “were very clear” that the issue of Melgen’s case could not be discussed in the meeting with Reid, Menendez, then-HHS Secretary Kathleen Sebelius and other staffers, and that the conversation instead focused more generally on the underlying health care policy behind the dispute, Leone said.

While prosecutors don’t plan to call Reid, it remains to be seen if the defense team will call him in their case.

Federal regulations at the time approved Lucentis for “single-use” only, meaning that each vial should only be used for a single patient, but the doctor “multi-dosed” the drug, using the “overfill” from the vials to treat up to three patients, and then billed Medicare three times, as if a separate vial was purchased for each dose.

Leone testified that Reid arranged the August 2012 meeting with Menendez to “make sure there was a full airing of the Sen. Menendez’s concerns” regarding the issues surrounding Melgen’s overbilling dispute, since the senator felt CMS and HHS had “not been responsive enough” to his inquiries.

Leone further explained to jurors that Menendez “expressed concern” about what he viewed as a “inconsistency” in the CMS’ guidance on multi-dosing and he wanted it “clarified” in favor of allowing multi-dosing, but only prospectively.

Menendez’s alleged advocacy on behalf of Melgen regarding the CMS dispute is a major element of the government’s corruption case, since the government must prove the senator took some “official act” in exchange for something of value under federal bribery laws.

Later Wednesday afternoon, prosecutors sought to tie Menendez’s advocacy on the CMS dispute with Melgen’s political donations.

Specifically, witnesses testified about donations made by Melgen to political campaigns in 2012.

Melgen was on the hosting committee for a June 2012 fundraiser for Menendez’s senate race, a former fundraiser testified. And Melgen donated a total of $600,000, earmarked for the state of New Jersey, to a Democratic super PAC later that year, according to another fundraiser. One of the checks Melgen wrote was in October 2012, two months after the August meeting in Reid’s office.

On cross-examination, witnesses said that nothing about these donations was concealed or hidden, and that the super PAC never coordinated with Menendez’s campaign, as required under federal election law.

The trial will resume next Tuesday.

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