Experts say Menendez filing won't prevent trial, but could keep case from going to jury

Sen. Bob Menendez’s latest motion to have his corruption indictment thrown out may not succeed, but it raises important issues about a changing part of criminal law that could keep his case from ever going to a jury, law professors and former prosecutors say.

After being unable over the past two years to get courts to rule that he had constitutional immunity from being charged, Menendez's lawyers on Tuesday filed a new pleading based on the U.S. Supreme Court’s 2016 decision to overturn the corruption conviction of former Virginia Gov. Bob McDonnell.

It was the decision in the McDonnell case that led a federal appeals court on July 13 to overturn the corruption conviction of New York State’s former Assembly Speaker, Sheldon Silver.

Menendez’s attorneys now argue the McDonnell ruling changed the definition of “official acts” and what has to be proven for prosecutors to show a gift is actually a bribe so much so that the senator's April 2015 indictment should be dismissed.

But for that to happen, U.S. District Court Judge William H. Walls would have to decide that there is no way the government could prove its case, and Walls won’t be able to know that until he hears the testimony presented at trial, several experts said.

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At a pretrial hearing in April, Walls indicated he expects the trial to begin as planned after Labor Day, with jury selection starting Aug. 23.

“It’s unlikely the judge will dismiss the indictment in light of the McDonnell decision, but it has certainly injected additional hurdles for the government in proving its case,” said Robert Mintz, a former federal prosecutor who now heads the white collar defense practice at McCarter and English in Newark.

“The likely path forward will be to allow the government to present its case and at that point you would expect the defense would move for dismissal,” Mintz said.

Menendez is accused of using his office to benefit the business interests of a longtime friend, Florida ophthalmologist Salomon Melgen, because Melgen made more than $700,000 in contributions to committees that helped Menendez get re-elected in 2012 and gave the senator free trips on his private jet and vacations in his home in a Dominican Republic resort.

In exchange, Menendez is accused of lobbying officials over seven years in the departments of Health and Human Services, Homeland Security and State about three issues: a Medicare regulation Melgen used to receive $9 million in reimbursements the government said were illegal; a contract a Melgen-owned company had to screen cargo leaving the Dominican Republic; and visa applications to allow girlfriends of Melgen, who is married, to visit him in Florida.

For more than two years, Menendez had tried to have most of the charges thrown out by arguing in district and appellate court that the Constitution protected him from being charged. The Supreme Court decided in March not to hear the case.

Court narrows definition of 'official acts'

In overturning McDonnell’s conviction for using his office to promote the product of a businessman who gave him cash and gifts, the Supreme Court made a distinction between routine actions officials take to respond to constituents or offer their opinion and actual governmental actions such as signing bills.

“The court narrowed the definition,” said Ricchart Briffault, a Columbia Law School professor and expert on ethics. “Not everything an official does is an official act. The focus is on formal action.”

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Using that standard, Menendez’s attorneys say that officials in the executive branch, and not him, were the ones with the power to review the Medicare regulation and the cargo contract or issue the visas.

“The three ultimate official acts charged in this case are not official acts at all, and are even less so than the acts charged in the McDonnell case,” the Menendez motion argues.

The motion also said the McDonnell case made it tougher to show, as the government alleges, that bribery occurs when someone receives a “stream of benefits” over time as part of an ongoing corrupt deal to help a benefactor as needed. Instead, the defense says the government has to show a specific payment or gift was given to produce a specific action.

“McDonnell really has muddied the water around what constitutes an official act, and it’s muddied the water on whether a stream of benefits in certain circumstances can give rise to a corruption case,” said Adam Lurie, head of the government investigations practice at the Linklaters law firm in Washington, D.C., and a former federal prosecutor in Newark.

“They’re raising the right issues, the question is whether they can get the indictment dismissed on these arguments or whether they’ll have to make these arguments to a jury,” Lurie said.

Even if the motion does not succeed, however, Lurie said it will help the defense by putting the issue before Walls, who will hear testimony knowing that further arguments will come later.

Key question: Was there pressure?

Jessica Tillipman, who teaches an anticorruption course at George Washington University Law School, said her reading of McDonnell does not prevent the government from bringing its case against Menendez, but whether he is convicted depends on the facts in the case.

“Exerting pressure on government officials who can take action is enough,” she said. “That’s what the government has to prove here.”

She said if Menendez’s argument were to prevail, “Every official could hide behind subordinates, saying, ‘I wasn’t the one to take the action, it was that other person.’”

Nevertheless, McDonnell was a “substantial change in the law” that Menendez is right to test, said Kelly Kramer, co-leader of the white collar defense section at Mayer Brown in Washington, D.C.

“For many years, the view of courts was that most things a public official did were within the definition of official acts,” Kramer said. “Under the McDonnell definition of official acts, there seems to be a mixed question of fact and law.”

The key, he said, could be whether the officials Menendez spoke with felt pressured by the senator’s phone calls and comments, and the only way Walls will know that is by hearing them testify.

“That sort of inquiry a court cannot take up on a motion to dismiss,” Kramer said. “I’d be surprised to see the case get dismissed in its entirety.”