Menendez Judge Suggests He May Dismiss Senator's Bribe Counts

  • Jurors heard three dozen witnesses over five weeks of trial
  • Leaving hearing, senator sings ‘Amazing Grace’ in elevator

Senator Robert Menendez, a Democrat from New Jersey, center, arrives at federal court with his children Alicia Menendez, left, and Robert Jr. Menendez in Newark, New Jersey, on Sept. 6, 2017.

Photographer: Louis Lanzano/Bloomberg

The bribery case against New Jersey Senator Robert Menendez may be on the ropes.

After prosecutors finished presenting their case on Wednesday, U.S. District Judge William Walls suggested he may dismiss the heart of the case, citing a 2016 U.S. Supreme Court ruling that narrowed the definition of public corruption. Leaving the hearing with his lawyers and daughter, Menendez sang “Amazing Grace” in the courtroom elevator.

The judge’s comments came in the fifth week of a trial accusing Menendez, a New Jersey Democrat, of taking bribes from co-defendant Salomon Melgen, a Florida eye doctor and top donor. Prosecutors say Melgen’s bribes included campaign donations, luxury trips and private jet travel. In exchange, the government alleges, Menendez intervened on Melgen’s behalf in various disputes with the U.S. and Dominican governments. 

Robert Menendez exits federal court on Oct. 11.

Photographer: Peter Foley/Bloomberg

Defense lawyers urged Walls to dismiss the 18-count indictment before it goes to the jury, citing the Supreme Court’s decision to dismiss the corruption conviction of former Virginia Governor Bob McDonnell. That ruling narrowed the definition of “official acts” and has led in the past year to the dismissal of several other convictions in corruption cases.

Menendez’s attorney, Abbe Lowell, said the senator didn’t engage in official acts on Melgen’s behalf, given the new definition. “There is no circumstance in which a legislator can walk into a meeting with an executive branch official and be indicted for saying words like ‘please consider,’” Lowell said.

Kirk Ogrosky, Melgen’s attorney, said prosecutors also failed to show that the two men entered into a corrupt agreement. “There’s not a scintilla of evidence of an agreement,” he said.

Quid Pro Quo

Prosecutors maintain that Menendez corruptly helped the doctor with a Medicare billing dispute, a contract standoff and the approval of visas for three of Melgen’s girlfriends. Defense lawyers argue the two have been close friends for a quarter century who exchanged gifts without breaking the law.

Walls, who repeatedly read from the McDonnell decision during three hours of arguments, said prosecutors appear to have satisfied the new requirements for proving an official act. But he questioned whether they showed that specific bribes were linked to specific official actions, as the Supreme Court required.

In their 2015 indictment, prosecutors said Menendez received a “stream of benefits” and acted on behalf of Melgen “as opportunities arose.” Justice Department attorney Peter Koski said the McDonnell ruling didn’t overturn that theory. But Walls said he’s inclined to rule that the legal theory no longer applies. 

“I know what you’re trying to do, but I don’t think you can do it,” Walls told the prosecutor.

The judge acknowledged that he would be the first to rule on whether the "stream-of-benefits theory” was still valid after the McDonnell ruling. “Of course, I’d be the first,” Walls said. “But I’m the first to consider it.”

Twelve of the 18 counts in the indictment charge bribery. Both men are also charged with conspiracy, honest-services fraud and violating the Travel Act. Menendez is also accused of making false statements by failing to disclose Melgen’s gifts on government ethics forms. Both men are 63 years old.

‘Deep Breath’

While the judge indicated he may dismiss the bribery charges, he suggested he would allow the false statements count to proceed before the jury. The defense is scheduled to begin presenting its case on Monday.

Michael Weinstein, a former Justice Department trial attorney, said given the recent history of public corruption cases being overturned, "If I’m the government, I’m taking a deep breath and hoping that the Menendez case serves as a plug.”

“If the government loses, it’ll be more reluctant to come to battle,” he said.

Over 18 trial days, jurors heard from a variety of witnesses including: former U.S. Senator Thomas Harkin; former Health and Human Services Secretary Kathleen Sebelius; several lobbyists and fundraisers; workers who piloted or arranged trips on Melgen’s private jets; two of Melgen’s former girlfriends; and an FBI agent who appeared four different times on the witness stand.

Defense lawyers repeatedly sought to emphasize that Menendez arranged or took part in meetings, but never exercised his powers as a lawmaker to benefit Melgen. Prosecutors showed jurors photographs and offered testimony that played up the luxurious lifestyle that the two men enjoyed together. Melgen was convicted of health-care fraud earlier this year in a separate case.

If the defense prevails in convincing the jury of Menendez and Melgen’s innocence, it will deal a heavy blow to the Justice Department, which hasn’t brought charges against a U.S. senator since its case against Ted Stevens, an Alaska Republican. Stevens’ conviction was overturned eight years ago.

Menendez Trial Offers Ridicule, Sarcasm, Anger -- From the Judge

Recently, the Supreme Court’s McDonnell decision appears to have opened the floodgates for reversals of high-profile public corruption cases, including William Jefferson, a former Louisiana congressman. Former New York State Assembly Speaker Sheldon Silver; Dean Skelos, a former majority leader of the New York state senate; and Skelos’s son, Adam Skelos, have also had corruption convictions overturned over the past few months on similar grounds.

Silver, Skelos and his son are expected to be retried.

The case is U.S. v. Menendez, 15-cr-155, U.S. District Court, District of New Jersey (Newark).

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