Corruption case against Sen. Bob Menendez damaged but not dead, experts say

A federal judge’s decision on Wednesday to acquit U.S. Sen. Bob Menendez and his co-defendant on seven of the 18 charges they faced was a major setback for the government’s corruption case, but not a fatal blow, according to several legal experts.

“It sends a clear signal that there were problems with the government’s case and there continue to be problems with the government’s case,” said Adam Lurie, a former federal prosecutor who now heads the government investigations practice at the Linklaters law firm in Washington, D.C. “That said, the case survived.”

Wednesday’s decision was the second time since Menendez was indicted in April 2015 that U.S. District Judge William H. Walls threw out some of the charges against him and his co-defendant, Salomon Melgen, a Florida eye doctor and longtime friend.

RELATED: Judge acquits Sen. Bob Menendez on several bribery charges, but others remain

The latest ruling came just days after the U.S. Justice Department announced that it would take another shot at convicting the pair after a mistrial in the fall caused by a deadlocked jury. The department has said it is reviewing Walls’ ruling and “considering next steps.”

But the men still face accusations that they had a corrupt deal under which Melgen gave Menendez luxury travel and accommodations in exchange for the senator's using his office to help the doctor personally and financially. Menendez, a Democrat from Paramus who is running for re-election this year, also remains charged with lying on his congressional financial disclosure forms to conceal the gifts. 

“From the standpoint of the government, the central part of their case has been left intact and they will almost certainly move ahead with the retrial,” said Robert Mintz, a former federal prosecutor and now the head of the white-collar criminal defense practice at the law firm McCarter & English.

“It is significant that the false-statements count against Senator Menendez, which many observers view as the most difficult to defend, was not dismissed,” he added.

Rebecca Monck Ricigliano, formerly the first assistant attorney general of New Jersey and a federal prosecutor, said the judge’s ruling could both help prosecutors by forcing them to streamline their case and hurt them by causing certain evidence tied to the dismissed counts to be no longer admissible.

Either way, she said, as in the first trial, the government will struggle to overcome the so-called “friendship defense.”

“How do you prove beyond a reasonable doubt, which is the proof required at a criminal trial, that the benefits afforded to the senator were the result of a bribery scheme versus the result of a long-term friendship?” said Ricigliano, who is now a partner at Crowell & Moring in New York.

The counts on which Menendez and Melgen were acquitted Wednesday were related to more than $600,000 in political contributions the doctor gave to political committees supporting Menendez's re-election campaign in 2012. During the first trial, prosecutors tried to link the timing of the contributions to official favors Menendez performed for Melgen as proof of a corrupt agreement.

The remaining counts, Mintz said, are charged under the so-called “stream of benefits” theory of bribery, which holds that Melgen gave Menendez free flights and other things of value to effectively put the senator on retainer for whenever he needed a favor in the future.

That theory “gives the government more latitude in connecting the gifts to the official acts,” Mintz said. “But the inability of prosecutors to link closely in time each alleged official act with each item of value will likely make it more difficult to convince a jury that the conduct was part of a quid pro quo bribery scheme.”

One juror told reporters after the first trial, which lasted nearly three months, that the jury was divided 10-2 in favor of acquitting the senator.

“If the reports of a 10-2 vote to acquit are true, and after 11 weeks of a trial the government could not get a conviction, and the judge has now tossed several counts, it questions the wisdom of pursuing this case any further,” said Michael Koenig, a former federal prosecutor specializing in white-collar crime and now a partner at the Albany, New York, law firm Hinckley Allen.

Retrial could get ugly

Menendez, 64, has vociferously maintained his innocence throughout the case. On Thursday, he said he was “elated” by the acquittals. 

“We believe that the case from the beginning was political and had no merit, and we’re glad to see [the judge] knocked out nearly half of everything and said there was no merit," he said.

Menendez added that he saw an opportunity in both the ruling itself and Walls’ decision to recuse himself from future involvement in the case.

“Maybe the Justice Department will understand their case has been largely undercut, big time,” he said. And with a new judge, he said, “we would get a crack at motions on some of what’s left, and a different judge might look at it differently.”

New Jersey’s junior U.S. senator, Cory Booker, called the judge’s decision “a very solid step in the right direction.”

“I’m hoping this gives [prosecutors] pause and they will give some second thought now on going forward with this trial,” Booker, D-Newark, said Thursday.

A second trial could be uglier than the first.

On the same day they announced their intention to retry the case, prosecutors complained in a separate filing that jurors in the first trial had to walk past Menendez and his supporters occasionally praying in the hallway outside the courtroom. They also accused defense attorneys of attempting to “politicize and racialize” the trial by referring to Menendez's and Melgen’s shared Hispanic heritage and political affiliation.

"They made baseless accusations of racial animus on the part of the government," prosecutors wrote. "But this case is not about race and it is not a referendum on the current administration, nor the last. The defendants’ racially and politically charged comments have no place in the courtroom and serve only to confuse the issues and invite the jury to nullify the law by reaching a verdict in violation of its oath.”

Menendez supporters responded Thursday by holding a rally in Newark protesting the Justice Department’s “attack against religious expression,” according to a news release.

Washington Correspondent Herb Jackson contributed to this article. Email: pugliese@northjersey.com