Menendez Hopes Friendship With Donor Overcomes Tawdry Testimony

  • N.J. senator accused of taking trips, campaign cash for favors
  • Florida eye doctor convicted of separate health-care fraud

To hear prosecutors tell it, Senator Robert Menendez was corrupted by a Florida eye doctor who lavished him with a stream of gifts -- like private jet travel, a Paris hotel suite and hundreds of thousands of dollars in campaign donations -- to buy clout with government officials.

But the New Jersey Democrat and the physician, Salomon Melgen, will begin their corruption trial this week with a very different tale -- one focused on two decades of warm friendship far removed from the sort of gift-for-favor bargain that could send them to prison.

Senator Robert Menendez

Photographer: Andrew Harrer/Bloomberg

It’s a stark contrast to the typical conspiracy case, where defendants often try to distance themselves from their accused accomplices. Melgen had an opportunity to turn on Menendez after his conviction this year on health-care fraud charges in Florida. Instead, he chose to forgo a chance for leniency at sentencing and stick by the senator.

The central issue at the trial will be the nature of the two men’s relationship. The Newark jury will have to weigh whether Menendez was just helping a longtime friend in three disputes with the government -- which wouldn’t be illegal -- or a dirty politician who sold his office for seven years.

“The defense wants to show that if Menendez got anything of value, it wasn’t because of a bribe scheme, it’s because they’re good friends,” said Ricardo Solano, a former federal prosecutor. “It’s relevant to show the motive wasn’t corruption.”

Melgen ran a highly successful eye practice in Florida, and he shared his luxurious lifestyle with Menendez, a leading Hispanic voice in the Senate. The doctor treated the senator to seven trips on his private jet to Florida and the Dominican Republic, and paid for Menendez and a girlfriend to stay at a luxury Paris hotel. Melgen gave more than $700,000 to help the senator’s campaign in 2012.

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In return, prosecutors say, Menendez, 63, helped Melgen battle a U.S. health agency that said he overbilled Medicare by $8.9 million. The senator also helped the physician in his efforts to enforce a contract to screen shipping containers in Dominican ports. And the lawmaker helped the 63-year-old married doctor obtain visas so that eye-catching girlfriends in their 20s could visit him from Brazil, Ukraine and the Dominican Republic.

Salomon Melgen

Photographer: Mark Elias/Bloomberg

The 12 jurors, who include a children’s librarian, may not sympathize with such high flyers, said Mala Ahuja Harker, a former federal prosecutor and law partner of Solano’s at Freidman Kaplan Seiler & Adelman LLP.

“The tawdry element atmospherically is going to be challenging to get around,” said Harker. “Female jurors will be put off by the age-inappropriate women. It’s not how we want our politicians to behave. Unfortunately, we’ve been desensitized to a lot of that stuff.”

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The friendship defense doesn’t provide blanket protection for Menendez and Melgen as they battle charges of bribery, conspiracy and honest services fraud. Menendez also is charged with making false statements on his Senate ethics forms.

Prosecutors argued in an Aug. 30 filing that jurors can convict of bribery if “any part of the defendant’s intent was corrupt -- that is, to effect a quid pro quo.” Just as friendship may underlie a business relationship, it “may very well form the foundation of a corrupt endeavor,” prosecutors wrote.

“If the senator had a mixed motive, where part of it was to help a friend and part was to take money for official actions, then the government wins, as long as the jury believes it,” said Adam Lurie, a former federal prosecutor.

“But that’s a nuanced argument that may be difficult for the jury to follow,” he said. “It will be difficult because of how long-standing this relationship has been. It would be easier for the government if this were a newer relationship.”

To review the case docket, click here

In his 2009 book “Growing American Roots,” Menendez cites Melgen as an example of a successful Hispanic American. He recounted how Melgen came to the U.S. in 1979 from the Dominican Republic as a doctor who didn’t speak English and faced prejudice.

“Perseverance and internal fortitude paid off in the face of insults,” Menendez wrote of his friend.

Aside from the friendship defense, Menendez will also argue that he believed what he advocated to bureaucrats on Melgen’s behalf, said Lurie, a partner at Linklaters LLP. That could overcome the U.S. argument that he raised the flag for Melgen for corrupt reasons.

Prosecutors will try to prove that Menendez pressured government officials in a series of official acts. The U.S. Supreme Court narrowed the definition of official acts last year in setting aside the conviction of former Virginia Governor Bob McDonnell. The high court said prosecutors must prove an official act involved a formal exercise of power and be “something specific and focused” pending before a public official.

In the Aug. 30 filing, prosecutors signaled that they will painstakingly show the relationship between Melgen’s gifts and Menendez’s official acts. They don’t have recordings or a cooperating witness who can testify to a corrupt agreement.

“Usually, I would give a real advantage to the government, but this is a closer case,” said Lurie. “It’s unlike other cases because the defendant has an actual defense that makes it more difficult for the government, and they have a credible legal argument.”

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