The Limits of Friendship: Menendez Trial Update

The corruption trial of Senator Bob Menendez and Dr. Salomon Melgen is underway in federal district court in Newark, New Jersey. The parties reportedly expect the trial to last well into November. There don’t appear to be any big surprises or bombshells so far. As expected, the trial will come down to whether the government can establish the corrupt intent necessary to prove bribery. The defense claims that anything Melgen and Menendez did for each other was simply out of friendship. The government, on the other hand, charges that Menendez acted on Melgen’s behalf in exchange for extravagant gifts and hefty campaign donations. The gifts from Melgen included more than a dozen trips on his private jet to take Menendez back and forth to Melgen's luxury villa in the Dominican Republic, repeated free stays at that villa, a three-day vacation at a luxury hotel in Paris, and more than $750,000 in campaign donations. In return, the government alleges Menendez worked to resolve Melgen's multi-million dollar billing dispute with Medicare, lobbied the State Department on Melgen’s behalf in connection with a contract dispute, and helped secure visas for three of Melgen’s girlfriends to travel to the United States. No one really disputes that any of this took place. The key issue is why. The defense has repeatedly claimed the defendants' friendship explains all of their behavior, and has suggested that friendship is a “complete defense” to the charges of bribery. If the defendants acted solely out of friendship that would indeed negate corrupt intent and defeat a charge of bribery. But the notion that the mere existence of a friendship is a “complete defense” to bribery is nonsense. Friends can commit crimes together. I can rob a bank with my friend, and if my friend is a United States Senator I can pay him a bribe to do something for me. The government is not denying that the two are friends. They simply argue that friendship alone cannot explain what happened here. In fact, the friendship can actually be turned to the prosecutors’ advantage: “Of course they are friends, ladies and gentlemen. Who else would you trust with these kinds of secrets? Engaging in corrupt behavior with a stranger is too risky.”

Challenger private jet, the type owned by Dr. Melgen

With Friends Like These

The difficulty with the friendship claim is that the gifts here seem so far outside the bounds of mere friendship. As Robin Williams might have put it, most of us ain’t never had a friend like this. Take the jet trips, for example. It would be one thing if Melgen were flying to the Dominican Republic anyway and simply let Menendez catch a ride with him. But the government’s evidence is that Melgen would send his jet for Menendez, sometimes flying from Florida to DC to pick the Senator up, even when Melgen wasn’t going to the villa. When Melgen’s jet wasn’t available he sent another private jet for the Senator, or bought him a first-class ticket. Then there’s the Paris vacation. Melgen used his American Express points to book a suite for Menendez valued at nearly $5,000. It wasn’t for a trip the two were taking together; Melgen was not there. Prior to the trip, Menendez emailed Melgen specific instructions about the type of room that he wanted and how to book it with Amex points. The notion that these repeated, extravagant gifts were simply the result of friendship is going to be hard for the jury to swallow. It seems far more likely that Melgen was helping Menendez maintain a luxurious lifestyle he could not afford on his own and that Menendez was doing him political favors in return.

Villa at Casa de Campo, Dominican Republic

Lifestyles of the Rich and Famous

The government apparently has spent quite a bit of trial time in recent days establishing just how luxurious the accommodations were at the Dominican Villa and how nice the private jets were. They also brought into court the foreign fashion model girlfriends of Dr. Melgen to testify about how Senator Menendez helped arrange their visas to come to the United States. In a pre-trial brief the prosecutors noted the resort, Casa de Campo, is frequented by celebrities such as Jay-Z, Beyonce, and Jennifer Lopez. The defense criticized this brief, suggesting it was meant simply to sensationalize the case for the press. They may have a point; it is hard to see the relevance of the celebrity name-dropping. The prosecutors need to walk a fine line here. It’s important to establish that the resort was a very high-end place, but that’s something that could be done fairly quickly. Dwelling on it and presenting multiple witnesses could become counter-productive if the jury starts to get bored. The other danger is if it starts to appear prosecutors are suggesting a luxury lifestyle is itself a crime or that the jurors should resent the defendants for it. The luxurious nature of the trips is relevant to whether Menendez would agree to be influenced in exchange for those trips – but only up to a point. The truth is that giving a senator free stays at a Motel 6 could also be a bribe, if it was done in exchange for an agreement to perform an official act. Spending many hours establishing how luxurious the resort was doesn’t really get you closer to proving the critical question of corrupt intent. The same is true with the testimony of the girlfriends. It may be titillating to parade the married Dr. Melgen’s young female companions before the jury, but it doesn’t really advance the ball in terms of proving corrupt intent. Menendez could accept a bribe in exchange for getting a visa for someone’s grandmother and the crime would be the same. The more time prosecutors spend playing up the luxurious nature of the gifts or the relationships with young women, the more they open themselves up to defense arguments that they are simply trying to sensationalize the case and don’t really have any solid evidence of a corrupt agreement. As I said, I think it’s a fine line to walk. But I can’t help but wonder if the prosecutors are at risk of crossing too far over to the sensationalist side of that line.

Political Implications of a Conviction

Washington has been buzzing about the possible political implications if Menendez is convicted. He’s a Democrat, and the Republicans hold a very narrow majority in the Senate. A single vote can make a big difference, as we saw with the recent (and now apparently revived) attempts to repeal Obamacare. If Menendez leaves the Senate the governor of New Jersey gets to appoint a replacement. This has led to speculation that if Menendez is convicted, the Republican governor Chris Christie could appoint a Republican replacement to serve out the remainder of Menendez’s term, which ends in 2018. That could shift the balance of power in the Senate in the Republicans favor. This is unlikely to happen. Even if Menendez is convicted, he does not automatically lose his Senate seat. Assuming he does not resign (which seems a safe assumption), the Senate would have to vote to expel him. That requires a two-thirds vote of the Senate, which means a number of Democrats would have to agree. If convicted Menendez will undoubtedly appeal. He and other Democrats would likely argue that he deserves to hold his seat until his appeals are resolved. Even if the Senate did move to expel Menendez, that would presumably require some kind of hearings and deliberations, which would also take time. Nothing moves that rapidly in Congress, and we are approaching the holiday recess. The last U.S. Senator to be convicted of bribery was Harrison Williams, also from New Jersey, who was convicted in the Abscam investigation in May of 1981. He managed to hold on to his seat for another ten months before finally resigning just as the Senate was about to vote to expel him. This all matters because New Jersey is holding a gubernatorial election in November, and polls show the Democrat Phil Murphy is likely to win. So if any appointment of a successor to Menendez is delayed until after mid-January, that appointment likely would be made by a fellow Democrat. For that reason, Menendez and the Democrats will try to delay any resolution of Menendez’s fate, and they will likely be able to succeed. I’ve joked that if I were the Democrats I’d invoke the “Merrick Garland principle:” argue that the New Jersey governor should not get to make any Senate appointments when there is an election approaching. We should wait until after the election so the voice of the New Jersey people can be heard and the appointment can be made by the newly-elected governor. (I’m sure Mitch McConnell would agree with the wisdom of this approach.) All the buzz about whether the Republicans might gain a Senate seat seems unrealistic. Regardless of the outcome of the trial, the reality is that Menendez will almost certainly still be in place until after the New Jersey election.

More on Menendez, McDonnell, and Public Corruption

As I’ve argued elsewhere, I don’t think the Supreme Court’s recent decision in the Bob McDonnell case is likely to be a significant issue in the Menendez trial. This past Sunday on the C-Span program “Q & A,” Brian Lamb interviewed me about the Menendez case, the potential effect of McDonnell, and prosecuting public corruption cases in general. If you are interested, you can find that interview here:

C-Span's Q & A - September 17, 2017

In the meantime, watch this space and I'll be back with any new developments as the trial progresses. Update: On November 16, 2017, the Menendez trial ended with a hung jury. Like this post? Click here to join the Sidebars mailing list.