This material belongs to: The New York Times.
NEWARK — They were two of the most notable corruption convictions in recent political history, two entrenched New York power brokers seemingly brought to justice, their cases reverberating well beyond the wood-paneled walls of the Statehouse in Albany.
And in a span of less than three months, both convictions were overturned.
The legal turn of events in the cases against Sheldon Silver and Dean G. Skelos, the two former New York State legislative leaders, is almost certain to resonate in another corruption case unfolding just across the Hudson River in the federal courthouse here where the defendant is United States Senator Robert Menendez, a Democrat from New Jersey.
What has given Mr. Silver and Mr. Skelos a reprieve was the ruling last year by the United States Supreme Court overturning the conviction of the former Virginia governor Bob McDonnell. In its unanimous decision, the court severely narrowed the definition of the kinds of official acts a politician must perform to be considered as having partaken in an illegal quid pro quo.
Making phone calls, arranging meetings or offering support on an issue no longer qualified as an “official act” as defined by the court. Instead, an act had to be more directly tied to an elected official’s office, such as offering a government contract or writing legislation.
In all three cases, the indictments were filed before the Supreme Court ruled in the McDonnell case and Mr. Skelos and Mr. Silver were convicted before the Supreme Court ruled.
But Mr. Menendez’s trial had not started when the ruling was issued and his defense team considered the decision as providing a legal cudgel to have the senator’s case dismissed. They filed a motion in July, after Mr. Silver’s case was overturned, arguing that the McDonnell ruling “changed the legal landscape for bribery prosecutions” and that the indictment, as it stood, could not “be reconciled with the Supreme Court’s guidance in McDonnell.”
However, the judge hearing Mr. Menendez’s trial, Judge William H. Walls, denied the motion.
“Whether the acts alleged in the Superseding Indictment satisfy the definition of an ‘official act” under McDonnell is a factual determination that cannot be resolved before the Government has the opportunity to present evidence at trial,” Mr. Walls wrote in his decision.
But, he added, the court reserved the right to revisit the possibility of dismissing the case after “the conclusion of the presentment of evidence at trial.”
Yet as a result of the ruling by a federal appeals panel overturning Mr. Skelos’s conviction on Tuesday — attributed in large part to faulty jury instruction — as well as the decision in Mr. Silver’s case, legal experts say prosecutors in Mr. Menendez’s case have a well-defined higher bar to clear. And that bar needs to be carefully explained by the judge in his instructions to jurors.
“To put it another way, if Menendez had been tried before McDonnell, it almost certainly would have had a flawed jury instruction, the type that would have gotten reversed,” said Ricardo Solano, a former federal prosecutor.
The McDonnell ruling has “made it much more difficult for the government and it made it much more difficult to define actual acts that were taken,” said Michael Weinstein, a former trial attorney for the Department of Justice. “Not a setup, not a meeting, but a real action that the representative took. That’s a higher burden and a higher standard than had existed previously.”
The Menendez defense argued along the same lines in its motion.
The charges against Mr. Menendez stem from three separate issues that the government is attempting to show were official acts taken by the senator on behalf of Dr. Salomon Melgen, a wealthy ophthalmologist and donor from Florida, in exchange for lavish gifts and political contributions.
In one case, prosecutors say that Mr. Menendez personally intervened in visa applications for three of Dr. Melgen’s friends. Mr. Menendez is also accused of pressuring the State Department and Commerce Department to help resolve a contract dispute involving Dr. Melgen in the Dominican Republic. And in the third case, prosecutors say that Mr. Menendez pressured the Department of Health and Human Services to resolve a billing dispute involving Dr. Melgen.
In its motion, the defense argued that, “The acts in this case are even farther removed from McDonnell, as none of the official acts that Senator Menendez allegedly sought to influence were acts that he could take or that even could be taken by anyone within the Legislative Branch,” and that they would not fall under “official acts” taken by a senator, such as introducing legislation.
Mr. Menendez’s lawyers specifically cited Mr. Silver’s case, saying the “official authority” theory offered by prosecutors in that case, which a federal appeals panel found to be “overbroad,’’ was “the same theory that animates” the indictment in Mr. Menendez’s case.
Some legal experts said the rulings in the Silver and Skelos cases were actually somewhat of a gift to prosecutors and Judge Walls because it offered more clarity about how higher courts are interpreting the McDonnell decision.
“If you think about Menendez now, it has the guidance of both the McDonnell decision and the Second Circuit in Silver and Skelos,” said Shira A. Scheindlin, a former federal judge, referring to the court that overturned both convictions. “The judge knows exactly what the charge has to be.”
The same, she said, goes for prosecutors.
“They can read this and if they haven’t put in some evidence and they now think they have to, or if they haven’t, they will,” she said, referring to the Skelos opinion. “The prosecution benefited from the timing, because they know exactly what they have to do to get a conviction and make it stick.”
Perhaps mindful of the legal landscape, the prosecution has been exceptionally explicit in detailing the timing of the reported gifts from Dr. Melgen and the actions said to have been taken by Mr. Menendez. “Pay close attention to the timing in this case,” Peter Koski, the lead prosector, said in his opening statement.
And the rulings overturning the convictions against Mr. Skelos and Mr. Silver, legal experts noted, were narrowly focused and do not mean that corruption cases against politicians cannot be won. In the Skelos ruling, the panel said that a properly instructed jury had enough evidence to render a guilty verdict.
“The court is not saying that politicians can do whatever they want, it’s just the instructions to the jury need to be really crisp as to what are official acts and what are not official acts,” said Jeff Cramer, a former federal prosecutor. “Skelos is going to be retried. Silver is going to be retried.”
Still, Mr. Cramer said, the McDonnell decision and the rulings that have followed have injected a level of uncertainty for prosecutors in all political corruption cases going forward, including Mr. Menendez’s.
“I don’t think any prosecutor who has been doing this for a period of time would have guessed that this would have been the outcome,” he said.
