In the recently concluded legal saga of New Jersey Democratic Senator Bob Menendez, a few facts went more or less uncontested.
Menendez accepted gifts from a wealthy doctor and co-defendant, Dr. Salomon Melgen. Menendez made calls and took meetings on government-related issues that Melgen had an interest in.
And, most importantly for the senator and the jury, Menendez and Melgen were close friends for two and a half decades.
That last fact is what got Menendez and Melgen out from bribery charges, leading to a hung jury and ultimately the dismissal of all charges last week, Menendez’s lawyer said in an appearance on the NPR show On Point Wednesday.
“There were real affections that the documents showed,” criminal defense attorney Abbe Lowell told guest host Indira Lakshmanan. “That was a real friendship. And what the government tried to do was criminalize that by saying that it was a corrupt agreement. And the jury, having seen the evidence of the 20 years, the back and forth and the reality of what the relationship was, rejected that premise.”
The failure of the Menendez prosecution is one of a string of setbacks for the Department of Justice’s corruption prosecutions in the past couple of years — an issue we tackled on our show about a troubling trend for good-government advocates.
They’ve always been difficult, as the Menendez case shows, because they require getting into someone’s head: Why did the senator and his office get involved in issues that Melgen was interested in, like visas for Melgen’s girlfriends, a port security contract and Medicare billing? Why did Menendez fly on Melgen’s private jet and go on lavish vacations on Melgen’s dime? The government ultimately couldn’t prove their theory of the “why” — corrupt scheme, rather than friendship; bribery, or Menendez's longstanding policy interests — without cooperation or wiretaps.
But they've also gotten even harder recently, experts worry, because of the so-called McDonnell decision.
Former Republican Virginia Gov. Robert McDonnell was convicted for accepting a Rolex, rides in a Ferrari and payments toward his daughter’s wedding catering from a major campaign donor. He then helped set up meetings for that donor's business interests with government officials.
In a unanimous ruling, the Supreme Court in 2016 vacated McDonnell’s conviction. Bribery is paying someone off to influence an “official act,” but an “official act” can’t be something as simple as setting up meetings, the justices ruled.
Indicted politicians around the country — Menendez included — have argued that the McDonnell decision made their cases impossible.
For Menendez, the definition of “official acts” was very much a live one before the jury, according to media accounts of the trial. But the judge never bought their arguments — that assisting with visa applications was not an “official act” and couldn't be the foundation for a bribery charge, for example.
And according to Lowell, Menendez’s attorney, the jurors never even got around to those arguments, rejecting the case wholesale.
Menendez’s staff, meanwhile, has aggressively pushed back on the notion that the McDonnell case had much of anything to do with the Menendez case (even though Menendez’s lawyers, in a joint brief with Melgen asking for acquittal, included the word “McDonnell” exactly 100 times).
Menendez’s office did not respond to a request for comment Thursday about whether Menendez still accepts valuable gifts from friends and also advocates for things they’re interested in. According to reports on NJ.com and other outlets, he paid back $58,000 for the flights after the media started asking about them (but before the indictment). An Senate ethics investigation into Menendez is pending, reports say.
But the criminal case should never have been brought, Menendez’s communications chief, Patricia Enright, said on Twitter.
“It was bogus,” Enright said. “Find another poster child for corruption.”
Menendez is up for re-election in 2018. New Jersey is a heavily Democratic state, and Menendez’s fellow Democrats, including Gov. Phil Murphy and Sen. Cory Booker, have rallied to his side.
"To those who were digging my political grave so they could jump into my seat,” Menendez said after his mistrial, “I know who you are, and I won’t forget you.”
This post has been updated.