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After hearing testimony from Senate staffers, government bureaucrats, and private jet pilots, Judge Walls indicated he may dismiss most of the 18 charges against Menendez. (Oct. 13, 2017)
Faced with the prospect that a federal court judge may throw out some of the charges against Democratic U.S. Sen. Bob Menendez based on his reading of a recent U.S. Supreme Court decision, prosecutors warned over the weekend that such a move would not only harm their case against Menendez but also “jettison the vast majority of bribery prosecutions” and “broadly legalize pay-to-play politics.”
Prosecutors raised those concerns a few days after U.S. District Court Judge William H. Walls suggested that in overturning the conviction of former Virginia Gov. Bob McDonnell last year, the high court also invalidated the “stream of benefits” theory of bribery that prosecutors have used to build cases against Menendez and other public officials.
Attorneys for Menendez countered with a lengthy legal brief defending Walls’ apparent interpretation of the McDonnell decision, to which they have referred in previous attempts to get the case against Menendez thrown out.
Walls has yet to rule on the matter as he considers the arguments presented by both sides.
In its 18-count indictment, the government alleged that Menendez accepted bribes from co-defendant Salomon Melgen, a Florida eye doctor and longtime friend, in exchange for lobbying Obama administration officials on issues that could benefit the doctor financially or personally, including visa applications, a port security contract and a Medicare billing dispute.
Both men have denied the charges, and their attorneys have said that what the government calls bribes were really gifts between friends. They have also said Menendez’s interactions with government officials — though they could have aided Melgen’s business interests — were “what members of Congress do” and were meant to influence future policy.
Prosecutors have argued that all they have to do to prove bribery is show that Melgen plied Menendez with gifts and political contributions — a “stream of benefits” — to influence Menendez’s actions “as opportunities arose.”
But defense attorneys maintain, as Walls suggested, that the McDonnell decision requires a higher standard of proof that prosecutors have no hope of meeting on several counts: that as part of an explicit quid pro quo arrangement, Menendez agreed to do specific official acts on Melgen’s behalf in exchange for specific gifts or payments.
“At best, the prosecution’s attempt to link any specific quid with any quo is a random exercise (e.g., something in 2006 for something in 2008, something in 2010 for something in 2012, etc.) with no evidentiary support,” defense attorneys wrote in a brief made public Sunday. “Consequently, the prosecution comes up short under McDonnell.”
Defense attorneys said 10 of the 18 counts against Menendez and Melgen, including conspiracy to engage in honest services wire fraud and three bribery counts against each man, should fall with the theory.
In total, Menendez faces six counts of bribery, three counts of honest services fraud, one count of conspiracy, one count of interstate travel to carry out bribery, and one count of making false statements on his congressional financial disclosures to conceal the crimes. Melgen faces the same charges, except the false statements accusation.
After the government rested its case Wednesday, defense attorneys made a motion for a judgment of acquittal on all 18 counts, arguing that the government had failed to present enough evidence to prove its allegations.
During oral arguments on the motion, Walls raised doubts about the government’s reliance on the “stream of benefits” theory of bribery on some counts and invited both sides to submit written briefs on that and other topics.
Prosecutors in their brief looked beyond the Menendez case to predict that a ruling invalidating the “stream of benefits” theory would have severe negative repercussions.
“Invalidating the stream-of-benefits theory of bribery would decriminalize the most egregious forms of corruption, incentivizing greedy businessmen to put politicians on retainer and immunizing lawmakers who solicit bribes in exchange for a promise to perform official acts, as opportunities arise,” prosecutors wrote in a brief filed Saturday. “The Supreme Court did not, and this Court should not, render a decision that has the unsettling effect of legalizing all such conduct.”
Prosecutors argued that the Supreme Court never mentioned the “stream of benefits” theory in its McDonnell decision and thus had no intention to weaken it. They also said several courts since McDonnell have affirmed that the theory is a valid basis for criminal liability.
“The prosecution’s stating that there are courts that continue to cite to stream of benefits cases after McDonnell is beside the point because the question before this Court was not specifically posed or litigated in those cases,” defense attorneys said in response.
The defense also provided Walls with several arguments beyond those related to the “stream of benefits” theory for why he should grant their motion for acquittal.
Walls is yet to rule on the motion, and it’s unclear when he will do so. Jurors were instructed last week to return to the courthouse at 9:30 a.m. Monday.
During oral arguments last week, Walls said the false statement accusation will go to the jury, but he didn’t give a clear indication as to the other counts.