The Menendez Trial and the Future of Bribery

The prosecution has finished presenting its case in the trial of New Jersey Senator Bob Menendez. Menendez and his co-defendant, Dr. Salomon Melgen, are facing multiple counts of bribery and related charges. The government alleges that in exchange for gifts from Melgen including private jet trips, luxury vacations, and large political donations, Menendez interceded on Melgen’s behalf in various disputes he was having with the federal government. (A more detailed analysis of the indictment is available here.)

Senator Menendez faces corruption charges

Senator Robert Menendez

When the government rested last week, the judge made some comments that appeared to question whether the bribery case could survive the Supreme Court’s 2016 decision in McDonnell v. United States. This led to widespread speculation that the judge might dismiss many of the charges. But on Monday the judge ruled there was enough evidence to go to the jury. The defense is now putting on its case.

Menendez makes two primary types of claims concerning the bribery charges. The first is that the things he agreed to do for Melgen did not qualify as “official acts” under McDonnell and thus could not support a bribery conviction. The second is that, even if Menendez did perform official acts, they were not in response to any gifts from Melgen but were simply done out of friendship or as part of Menendez’s routine Senate responsibilities.

The McDonnell case has been looming over the Menendez prosecution from the beginning. If the Senator is convicted, I think there is a good chance that at least some of the bribery charges will indeed be overturned on appeal. But I believe it will be based primarily not on McDonnell but on a different Supreme Court case decided almost two decades ago.

McDonnell and “Official Acts”

The Supreme Court in McDonnell held that in any federal bribery case the prosecution must prove the public official agreed to be influenced in the performance of an “official act” as defined in 18 U.S.C. 201, the federal bribery statute. The Court concluded that Governor McDonnell’s actions —  making phone calls, arranging meetings, and holding an event at the Governor’s mansion — did not rise to the level of “official acts” and could not support a bribery conviction. (For a critique of McDonnell and its “official act” holding, you can see my posts here and here.)

The “official act” argument says, in effect, that even if there were a deal or quid pro quo, what the public official did – the quo – was not substantial enough to justify a bribery charge. The official can admit there was a link between his actions and the gifts he received, but argue that those actions were trivial or were simply routine political courtesies.

The McDonnell opinion has already resulted in some high-profile convictions being thrown out, including that of former New York State Assembly Speaker Sheldon Silver. Senator Menendez has argued from the beginning of his case that the things he did for Dr. Melgen did not amount to official acts, and the judge has repeatedly rejected his arguments. As I wrote here, I think the judge is correct. If Menendez is convicted and those convictions are later overturned, I don’t expect it to be on the McDonnell “official act” ground.

Melgen is accused of bribing Senator Menendez

Dr. Salomon Melgen

Quid Pro Quo and the “Stream of Benefits” Theory 

Assuming Menendez did perform official acts, to be bribery those acts still needed to be done in exchange for the gifts he received from Melgen. This is the requirement of a quid pro quo, or corrupt intent. This is Menendez’s other main line of defense: he says that anything he did for Melgen was either out of friendship or was part of his general oversight and policy duties as a Senator, not in response to the gifts he received.

Some counts of the indictment related to Melgen’s hefty political contributions to Menendez allege a direct quid pro quo (Counts 9-14). They charge that in exchange for a particular donation, Menendez took a particular identified official act, such as advocating on Melgen’s behalf before the State Department or Department of Health and Human Services.

But a number of the charges (Counts 2-8) rely on a different bribery theory, known as “stream of benefits.” These counts charge that Menendez accepted gifts such as trips on Melgen’s private jet in exchange for “being influenced in the performance of official acts, as opportunities arose.” The specific official acts are not identified in the individual bribery counts, although a large number of official acts are described in the indictment as a whole.

Prosecutors use this “steam of benefits” theory in cases where the bribe payer essentially has the public official on retainer. In exchange for a series of gifts over time, the public official agrees do things to benefit the bribe payer when opportunities arise. It might not be possible to prove a direct link between any particular gift and any particular official act; what is charged is the continuing corrupt relationship, a sort of ongoing “you scratch my back and I’ll scratch yours” theory.

The Supreme Court has never weighed in on this stream of benefits theory. It has been widely accepted in the lower courts, including those in the Third Circuit where Menendez is on trial. But Menendez’s attorneys claim that McDonnell has changed the legal landscape here as well.

The trial judge made some comments last week suggesting he might find that the stream of benefits theory did not survive McDonnell. In the end, though, he agreed with the government that McDonnell’s requirement that an official act be specific and focused does not mean the act has to be identified at the time of the corrupt agreement. In other words, the deal may be, “I’ll give you a stream of benefits over time, and in exchange you agree to do things for me, as the opportunities arise, that qualify as official acts.” The parties have to agree that the public official will perform official acts, but they don’t have to agree up front what the precise official acts might be.

As far as the impact of McDonnell itself is concerned, that seems like the right answer. McDonnell did not discuss the stream of benefits theory and there’s no particular reason to believe that the “official act” requirement, standing alone, would invalidate that theory.

But I think the Supreme Court’s overall approach in McDonnell does suggest the Court might well reject the stream of benefits bribery theory if given the opportunity. That rejection would primarily be based not on the holding of McDonnell, but on the language of the federal bribery statute itself and the reasoning of a 1999 Supreme Court case, United States v. Sun-Diamond Growers of California.

The Sun-Diamond Decision

In Sun-Diamond the defendant, a large agricultural cooperative, was charged with giving illegal gratuities to the Secretary of Agriculture, Mike Espy. The crime of gratuities, 18 U.S.C. 201(c), appears in the same statute as federal bribery, 18 U.S.C. 201(b). It prohibits giving a public official a thing of value “for or because of any official act.” It differs from bribery in that no corrupt intent to influence the official is required; a gratuity can be a mere “thank you” for an official act that has already been performed.

Sun-Diamond was prosecuted on what was sometimes called a “status gratuity” theory. The government didn’t identify any particular official acts by Espy to which the gifts were linked. Instead, it argued it was enough that the gifts were based on Espy’s official position and were made with the hope of building up a reservoir of goodwill with Espy, perhaps to influence or reward some unspecified official act in the future.

The Supreme Court rejected this theory. It was not enough, the Court held, to charge Sun-Diamond with paying gratuities to Espy based on his status or for official acts not named in the indictment. The Court found that section 201(c)’s requirement that a gratuity be “for or because of any official act” means a specific official act must be identified. The Court particularly focused on the phrase “any official act,” holding that this language “seems pregnant with the requirement that some particular official act be identified and proved.” It specifically rejected the alternative, broader interpretation that “any official act” meant any one of the universe of potential official acts “without specification as to which one.”

Did the Stream of Benefits Bribery Theory Survive Sun-Diamond?

Sun-Diamond rejected a gratuity prosecution based on a stream of gifts not linked to any particular official acts. But in the wake of Sun-Diamond, lower courts have continued to uphold the stream of benefits theory in bribery prosecutions. Courts have held that the reasoning of Sun-Diamond does not apply to bribery cases because bribery requires proof of a higher level of intent, a corrupt quid pro quo. That’s true, but as one of my old law professors liked to say, is that a difference that makes a difference?

The language of the gratuities and bribery statutes is strikingly similar. The bribery statute in section 201(b)(2)(A) prohibits a public official from accepting anything of value in exchange for agreeing to be “influenced in the performance of any official act.” That phrase – “any official act” – is precisely the language that the Court in Sun-Diamond said required a particular official act to be identified and proved. It’s not clear to me how the different levels of intent required for the two crimes makes any difference at all when it comes to interpreting this statutory language. For either a gratuity or a bribe, the statute and reasoning of Sun-Diamond appear to require a link to a particular, identifiable official act.

There is another reason to be suspicious of lower court decisions upholding the stream of benefits theory after Sun-Diamond: most of those cases involved prosecutions for honest services fraud or Hobbs Act extortion, not section 201 bribery. Courts in those cases typically were applying general bribery law principles, not parsing the precise statutory language of 18 U.S.C. 201. One of the leading “stream of benefits” decisions, a 2007 case from the U.S. Court of Appeals for the Second Circuit called United States v. Ganim (authored by now-Justice Sotomayor when she was on the appeals court) made precisely that point. Judge Sotomayor noted that Sun-Diamond hinged on the precise wording of section 201 and that the same reasoning did not necessarily apply to other corruption statutes, including the Hobbs Act charges at issue in Ganim.

Menendez is also charged with honest services fraud, but the bulk of the bribery charges in his indictment are under 18 U.S.C. 201. McDonnell and Sun-Diamond make it clear that when interpreting section 201 the Supreme Court will not look to common-law bribery principles but will strictly interpret the precise statutory language. As a result, lower court cases upholding the “stream of benefits” theory in honest services fraud or Hobbs Act cases are of limited value when considering how the Supreme Court would rule in Menendez’s case. And McDonnell suggests that however the Court ends up defining bribery for purposes of section 201, it will apply that same bribery definition to honest services fraud and the Hobbs Act as well.

The Menendez defense argues that the stream of benefits theory does not survive McDonnell. I think the better argument is that it actually did not survive Sun-Diamond and the Supreme Court just has not yet had a chance to say so. The Court’s approach to statutory interpretation in McDonnell simply further highlights why it is unlikely to buy the stream of benefits theory for bribery.

The Defense: Playing the Long Game

The trial judge is likely to let the jury decide the Menendez charges. Even if the judge thinks some of the bribery theories may be invalid, he will likely feel constrained by Third Circuit precedent to let the case go to the jury.

Senator Menendez is in part playing a long game, hoping that even if he is convicted he ultimately will prevail on appeal. Don’t forget that Governor McDonnell was convicted at trial and his conviction was affirmed by a unanimous Court of Appeals before the Supreme Court ultimately took the case and unanimously reversed.

If the Menendez case ever were to reach the Supreme Court, I think there’s a good chance the Court would reject the stream of benefits bribery theory. A number of counts against Menendez and Melgen would remain, so that alone would not mean they would walk free. But it would represent yet another step by the Court to further narrow the scope of federal public corruption law – a process that began nearly twenty years ago in Sun-Diamond.

Update: On November 16, 2017, the Menendez trial ended in a hung jury.

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Why Bob McDonnell Won’t Save Bob Menendez

U.S. Senator Robert Menendez is facing trial this fall on corruption charges. His lawyers will claim the Supreme Court’s recent decision in the Bob McDonnell case means the charges against Menendez cannot stand. But the effect of the McDonnell case on the Bob Menendez trial is likely to be pretty limited.

New Jersey Democrat Menendez and his co-defendant Dr. Salomon Melgen were indicted in April 2015. (You can find my detailed analysis of the indictment here.) The case has been on hold for two years while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trial court and the U.S. Court of Appeals for the Third Circuit rejected those arguments. The Supreme Court recently declined to hear his appeal, finally clearing the way for the case to go to trial.

But while Menendez was pursing his Speech or Debate appeals, the U.S. Supreme Court decided McDonnell v. United States. The Court reversed the convictions of the former governor of Virginia, holding that McDonnell did not perform “official acts” as defined by federal bribery law.

Senator Menendez and his lawyers are hoping that McDonnell will breathe new life into his own defense. They will argue that Senator Menendez, like Governor McDonnell, did not agree to perform any official acts. But for Menendez that’s going to be an uphill battle.

Senator Robert Menendez

Senator Robert Menendez

The Charges Against Senator Menendez

The Menendez/Melgen indictment describes a long-term bribery scheme. It charges that Melgen repeatedly provided Menendez with valuable gifts including multiple trips on his private jet, repeated stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to campaigns and legal defense funds. In exchange, Menendez allegedly interceded on Melgen’s behalf in several different government disputes. The government also alleges Menendez took steps to conceal these facts, including failing to report any of Melgen’s gifts.

The actions Menendez allegedly took on Melgen’s behalf fall into three general categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel to help three different foreign girlfriends of Melgen obtain visas to come to the United States.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the Dominican Republic to provide x-ray screening of cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes. Menendez and his staff contacted different State Department officials, urging them to pressure the Dominican government to implement the contract. At one point Menendez met with an Assistant Secretary of State and said he was unsatisfied with the way State was handling the matter. Menendez allegedly threatened to hold a hearing and call the Assistant Secretary to testify.

Medicare dispute:  Melgen, a prominent Florida ophthalmologist, was embroiled for several years in a multi-million dollar dispute over his Medicare billings. He was allegedly using an eye medication designed for a single patient to treat two or three people. He would then bill Medicare as if he had purchased a separate vial for each patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling.

Menendez and his staff worked for several years to help Melgen resolve this dispute. Menendez personally met with the Secretary of Health and Human Services and with the acting director of the Center for Medicare and Medicaid Services to advocate on Melgen’s behalf.

(As I write this, Dr. Melgen is currently on trial in Florida on a separate indictment charging him with Medicare fraud based in part on this scheme. Update: On April 28, 2017, Melgen was convicted on dozens of counts of fraud in the Florida case.)

What will be the effect of the McDonnell case on the Bob Menendez trial?

Former Virginia Governor Bob McDonnell

The McDonnell Decision

A jury convicted former Virginia Governor Robert McDonnell and his wife Maureen of multiple counts of corruption in September 2014. The McDonnells accepted more than $170,000 in gifts and undocumented “loans” from businessman Jonnie Williams. In return, prosecutors charged, the McDonnells agreed to promote Anatabloc, a dietary supplement made by Williams’s company, within the Virginia government.

A unanimous panel of the United States Court of Appeals for the Fourth Circuit upheld the convictions. But in June 2016 the U.S. Supreme Court unanimously reversed, holding that the steps taken by McDonnell on Williams’s behalf did not constitute “official acts” under federal bribery law. (You can find my more detailed analysis and critique of the Court’s opinion here.)

The Court based its decision on the language of the federal bribery statute, 18 U.S.C. § 201. That statute defines bribery, in part, as a public official accepting something of value in exchange for agreeing to be influenced in the performance of any “official act.” It further defines “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official . . . . ”

The evidence had shown that McDonnell made phone calls on Williams’s behalf, arranged meetings for Williams with other Virginia government officials, and hosted a product launch event for Anatabloc at the Governor’s mansion. The Court held that these actions, standing alone, did not amount to “official acts” and could not support a bribery conviction.

The Court broke its analysis down into two steps, focusing on the precise language of the official act definition. First, one must identify the relevant “question, matter, cause, suit, proceeding or controversy” to which the alleged bribe relates. This language, the Court held, connotes a “formal exercise of government power, such as a lawsuit, hearing, or administrative determination.” It suggests something that is “relatively circumscribed – the kind of thing that can be put on an agenda, tracked for progress, and checked off as complete.”

Second, the Court said, the public official must agree to take a “decision or action” “on” the relevant matter, suit or controversy. This requires that the official take some steps to address or decide the matter, or to influence or advise others to do so. In particular, the requirement that the decision or action be “on” the matter – and not merely “about” or “related to” the matter – suggests the official is working to resolve it somehow.

The Court concluded that McDonnell’s actions did not amount to official acts under this analysis. There were several Anatabloc-related issues that could constitute a “question, matter, cause, suit, proceeding, or controversy.” But simply making phone calls or arranging meetings did not amount to “decisions or actions on” any of those questions. McDonnell introduced Williams to various officials and extended other political courtesies related to Anatabloc. But McDonnell did not himself take steps to resolve any of the matters or pressure others to do so. Accordingly, the Court concluded, a bribery conviction based on McDonnell’s actions could not stand.

Did Senator Menendez Perform “Official Acts?”

Even before McDonnell was decided, Senator Menendez had filed motions arguing he had not performed any official acts. The trial court denied those motions back in 2015. Now, in the wake of McDonnell, Menendez will undoubtedly renew those arguments.

If we follow the Supreme Court’s two-step approach from McDonnell, it’s pretty easy to define the relevant “question, matter, cause, suit, proceeding or controversy” for each aspect of Menendez’s case:

1) Should the State Department grant a visa to allow this individual to enter the United States?

2) Should the U.S. government work to persuade the Dominican government to implement the port security contract?

3) Should HHS modify its rules concerning the dosing of a particular eye medication? Or, more specifically, should the Department pursue its claims against Dr. Melgen about alleged overdosing?

Each of these is a circumscribed issue, a question that could be put on an agenda and checked off as resolved. They are the type of specific administrative or policy matters that McDonnell requires.

Menendez will argue that he, like McDonnell, did not take any “decisions or actions on” the defined matters. But Menendez’s actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or introduce him to other officials. The Senator himself attended various meetings and otherwise advocated for Melgen’s interests. Unlike McDonnell, Menendez was actively engaged in trying to influence the outcome of the matters in question.

An official act must also involve a matter that is “pending, or which may by law be brought before any public official . . . . ” Menendez will also argue that the identified matters were never pending before him and that he did not have the power to decide them. As a result, he will claim, his advocacy on these matters cannot amount to official acts by him.

But the Supreme Court in McDonnell squarely addressed this question. The Court held that a “decision or action” may include influencing another public official who has the power to decide: “decision or action may include using his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.’”

In other words, the official act does not have to be one the defendant himself has the power to resolve. It is sufficient if the defendant attempts to pressure, persuade, or advise another public official to perform an official act.

In the Menendez case the relevant matters were pending before various Executive Branch officials. Their resolution of those questions would constitute official acts. The indictment alleges that Senator Menendez attempted to pressure or persuade those officials to resolve the matters in Melgen’s favor. McDonnell makes it clear that such efforts can be official acts by Menendez,.

Heads I Win, Tails You Lose

Menendez has put himself in a bit of a box with the legal arguments he has already pursued. He argued all the way to the U.S. Supreme Court that the actions he took on Melgen’s behalf were part of his official duties as a U.S. Senator and should therefore be shielded by the Speech or Debate Clause. Courts rejected those arguments because the Speech or Debate Clause shields only legislative activities. Lobbying Executive Branch officials is not protected.

Now Menendez will be arguing that those same actions were so unconnected to his position as a Senator that they could not be official acts. As the government has pointed out, Menendez effectively has argued that nothing a U.S. Senator does can be prosecuted as bribery: if it’s not a legislative act shielded by the Speech or Debate clause, then it’s not an official act and can’t support a bribery conviction. Heads I win, tails you lose.

For example, in their original motion to dismiss based on failure to allege official acts, filed on July 20, 2015, his lawyers argued: “With respect to a U.S. Senator, invoking oversight authority and a threatened use of official powers would be an official act, but it also would be immunized by the Speech or Debate Clause.” (p. 6 fn. 4). But the courts have now rejected the latter half of that claim.

With respect to the Medicare dispute and the port contract issue, the government is indeed alleging that Menendez threatened to hold hearings and otherwise to invoke his oversight authority. Having conceded that these would amount to official acts, it will be a challenge now for the defense to claim otherwise without developing whiplash.

Effect of the McDonnell case on the Bob Menendez trial

As with all criminal trials, the Menendez case is going to come down to the government’s evidence. Menendez may claim that in his interactions with Executive Branch officials he was merely seeking information. He may argue he was not advocating for Melgen or trying to influence those officials. If that turns out to be true, it may be a defense. Merely attending a meeting to gather information would probably not fit the Supreme Court’s definition of official act.

But the government is alleging much more. It intends to prove that Menendez was vigorously advocating on Melgen’s behalf, trying to persuade or pressure Executive Branch officials to decide questions in Melgen’s favor. Such actions would fall squarely within McDonnell and would qualify as official acts by Menendez.

McDonnell’s primary effect will be on the jury instructions. Menendez’s lawyers will not get the case dismissed prior to trial based on the official act issue. Even in McDonnell the Supreme Court did not say it was impossible for any jury to find McDonnell guilty. The problem was that the jury was not properly instructed about the definition of official acts.

The McDonnell case will therefore shape the Menendez jury instructions concerning what the government must prove about official acts. The defense will argue the government has not met its burden. But if it proves the allegations in the indictment, the government should have no trouble meeting the McDonnell standard.

Every public corruption defendant for the foreseeable future is going to seek salvation in the McDonnell opinion. Menendez may have some other viable defenses, including his claim that there was no quid pro quo and that Melgen’s gifts were based simply on friendship. But the McDonnell case and the definition of official act are unlikely to save him.

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Welcome to New Jersey: The Gloves Come Off in the Senator Menendez Prosecution

Update 10/9/15: on Thursday Oct. 8 the judge denied the remaining motions to dismiss, including those based on the definition of “official acts.”  On Friday Oct. 9 the defense filed a notice that it is appealing the denial of the motions to dismiss to the Third Circuit.

Update 9/28/15: today the judge granted the defense motion to dismiss four of the bribery counts (two against each defendant) for failure to allege a sufficient quid pro quo.  A number of other motions, including the motions to dismiss based on the speech or debate clause and prosecutorial misconduct, were denied.  A few motions remain outstanding, including those based on the definition of “official acts.”

If anyone thought the courtroom confrontation between federal prosecutors and New Jersey Senator Bob Menendez was going to be some kind of decorous legal debate, that notion should be dispelled by the papers recently filed by both sides.  The case is shaping up as a clash that will have all the quiet gentility of a New Jersey mob war.

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Menendez and his co-defendant Salomon Melgen were indicted last April in New Jersey federal court on multiple counts of bribery and related charges. (You can find my discussion of the indictment here.) The indictment alleges that over a number of years Menendez used the powers of his office to benefit Melgen, and in exchange Melgen gave Menendez a series of valuable gifts and contributions. These included multiple trips on Melgen’s private jet, repeated stays at a luxury villa in the Dominican Republic, a vacation in Paris, and large donations to various campaign funds and a legal defense fund that would benefit Menendez.

The actions Menendez allegedly took for Melgen in return fall into three categories: 1) Menendez worked to help three different girlfriends of Melgen obtain visas to come to the United States; 2) Menendez intervened with State Department officials seeking to have them pressure the Dominican government to move forward on a multi-million dollar contract Melgen held to provide cargo screening services at Dominican ports; and 3) Menendez met with HHS officials and otherwise sought to intervene on Melgen’s behalf in a dispute in which Medicare was seeking to recover millions of dollars in alleged overbillings from Melgen. (That dispute also led to Melgen being indicted for Medicare fraud in a separate case in Florida, shortly after Menendez and Melgen were indicted in the New Jersey case.)

The defense filed its first round of motions on July 20. It was a legal carpet-bombing: a total of fifteen different motions, totaling about 400 pages, with eleven different lawyers appear on the pleadings. But apart from the sheer volume of paper, what’s most notable is the nature of many of the arguments.

The Godfather famously remarked, “It’s not personal, it’s strictly business” – but the defense here has made it personal. The defense lawyers do not merely challenge the legal sufficiency of the charges (although they do plenty of that); they attack the integrity and motives of the prosecutors themselves. Several of the motions are devoted to claims that prosecutors and investigators engaged in deliberate misconduct in order to secure the indictment.

Among the allegations: that prosecutors deliberately misled the grand jury on legal issues; provided false or misleading evidence to the grand jury; improperly brought out inflammatory evidence about various women involved with the defendants; improperly leaked confidential grand jury material; and that prosecutors and investigators badgered, misled, and otherwise mistreated witnesses, including the Senator’s family and staff.

This level of personal attacks on the prosecutors is unusual, but it may be an unfortunate and inevitable legacy of the botched prosecution of former Alaska Senator Ted Stevens. In the wake of that debacle, defense attorneys likely feel they have a better chance of obtaining a sympathetic judicial ear when they allege prosecutorial misconduct in a high-profile corruption case — regardless of whether the allegations have any merit.

Prosecutors hit back hard on August 24. They managed to slay not quite as many trees, requiring only seven consolidated responses to the fifteen defense motions and about 2/3 the number of pages. And they made a number of misconduct allegations of their own: prosecutors claim the defense pleadings contain misleading excerpts of testimony, incomplete quotations, and other mischaracterizations of the facts. It all adds up, the prosecutors argue, to a pattern of deception that could not be simply inadvertent.

On the papers it seems to me that the government has the better of virtually every legal argument. A few highlights:

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Speech or Debate

As expected, a linchpin of Menendez’s arguments is that his actions are shielded by the Constitution’s Speech or Debate clause. As I discussed in this earlier post, the Speech or Debate clause, where it applies, provides Members of Congress with absolute immunity from being prosecuted for their legislative activities. But the clause does not apply to everything a Member does or everything that is part of his or her job; its coverage is limited to “legislative acts.”

Legislative acts include those actions that are integral to the actual process of introducing, debating, and passing legislation. As the Supreme Court has said, the issue is whether it is necessary to inquire into how the Member of Congress spoke, debated, or argued, or into anything else done on the floor or in committee. Acts that take place outside of the halls of Congress also may be protected, but only if they are integrally linked to the legislative process itself.

A legislator’s contacts with members of the Executive branch typically are not considered protected legislative acts. Predictably, Menendez has argued that this case is an exception.  He claims that his actions on the port contract and the Medicare dispute were not simply attempts to intercede on Melgen’s behalf but were in pursuit of a broader legislative policy. For example, he argues that when he met with State Department officials about the port contract he was actually working on the policy issue of ensuring adequate port security in countries that ship to the United States. Similarly, he claims that when he met with HHS officials about Melgen’s billing dispute he was really pursuing broader policy questions about HHS and Medicare reimbursement practices.

As the prosecutors point out, Menendez’s papers wield the word “policy” as though it were some kind of talisman, suggesting that if a Senator’s actions have anything to do with “policy” then they are protected by the Speech or Debate clause. But this is not the law: the Supreme Court decisions on Speech or Debate repeatedly use the term “legislative acts,” not “policy,” to define what is protected — and Menendez’s actions do not appear to be legislative acts.

It would be relatively easy for a corrupt Senator to come up with a “policy” argument concerning any actions taken in exchange for a bribe. For example, a Senator who took a bribe to pressure Pentagon officials to award a contract to a particular company could argue that he was simply working on defense “policy” or on Congressional oversight of defense spending. If this were the standard, it would effectively immunize virtually anything done by members of Congress, allowing them to accept bribes with impunity.

In addition to arguing that the defense has the wrong legal test, the prosecutors also point to a significant amount of evidence – including e-mails, witness statements, and other documents – demonstrating that, as a factual matter, the purpose behind Menendez’s actions was pretty clearly to help out Melgen, not to fulfill some broader legislative or oversight role.

That a Senator can come up after the fact with a “policy” that is somehow related to his actions does not transform those actions into protected legislative acts. Menendez’s attempts to shield his efforts on Melgen’s behalf are unlikely to derail the prosecution. But because issues concerning the Speech or Debate clause may be appealed immediately, regardless of what happens before the trial judge the fight over these questions could easily delay the trial for a year or more.

(As an aside, Menendez does agree that one category of his efforts on Melgen’s behalf – the work to obtain visas for Melgen’s girlfriends — was “pure casework” and thus not protected by the Speech or Debate clause. All of that activity, however, took place outside the statute of limitations, so there is little downside for Menendez in this concession. If he succeeded in having everything about the port contract and Medicare dispute thrown out of the case, he likely could argue that what remained of the prosecution was time-barred and also should be dismissed.)

“Official Acts”

Another key aspect of Menendez’s defense is the claim that any actions he took on Melgen’s behalf were not “official acts” within the meaning of the federal bribery laws. This is a popular defense argument in public corruption cases these days; it’s the centerpiece of the defense in the prosecution involving former Virginia Governor Bob McDonnell and his wife Maureen. (You can find my analyses of the “official act” issue in the McDonnell case here and here. McDonnell will soon be asking the Supreme Court to review his conviction, based largely on this question of whether he performed “official acts.”)

The prosecutors have some fun with Menendez’s claim in their Speech or Debate response. Menendez, they note, has argued that nothing he did was an “official act” within the meaning of the bribery laws. But the Speech or Debate clause protects only those actions integral to the job of a legislator, which would seem by definition to be official acts. By arguing that his efforts on Melgen’s behalf were not “official acts,” therefore, Menendez has essentially conceded that they are not protected by Speech or Debate. He can’t have it both ways.

But in any event, the law is pretty clear that interceding with the Executive branch can be an “official act” subject to the bribery laws. Again, if this were not the case, legislators would be free to accept bribes with impunity in exchange for pressuring Executive branch agencies on behalf of the bribe payor.

As the prosecutors point out, Menendez’s arguments boil down to this: everything a Member of Congress does either: 1) is a legislative act shielded by the Speech or Debate clause; or 2) is not an “official act” and so cannot be charged under the bribery laws. This “heads I win, tails you lose” approach would, as prosecutors put it, provide a “blueprint for immunizing criminal activity on Capitol Hill.”  These claims are unlikely to prevail.

The Prostitution Allegations

Another aspect of the defense pleadings may end up backfiring. One of their arguments is that the entire prosecution is tainted because the case began after allegations surfaced that Menendez and Melgen had procured the services of underage prostitutes in the Dominican Republic.  Menendez argues that these allegations came from political opponents or possibly the Cuban government, and that they are so inflammatory that they fatally tarnish the entire prosecution. The defense also claims that prosecutors asked improper and prejudicial questions in the grand jury about Melgen and Menendez’s girlfriends and other women seen with them.

Although the allegations about underage prostitutes were indeed what initially led prosecutors to look at Melgen and Menendez, those allegations do not form any part of the indictment. But by raising them again in an attempt to make Menendez appear to be a victim, the defense has brought those inflammatory charges back into the case and made them relevant. The prosecutors were forced to respond in order to defend themselves against the allegations of misconduct. Accordingly, in their papers they point out the seriousness of the allegations, that they had a duty to investigate them, and that in fact those allegations “were not so easily disprovable and had some corroboration.”

There’s really no legal basis to dismiss an otherwise valid indictment based on concerns about how the investigation first began. As New Jersey columnist Paul Mulshine has pointed out, by attempting to paint himself as a victim Menendez likely has succeeded only in bringing the allegations about underage prostitutes back into the public eye and lending them additional credence. Of course, having brought them back to light, Menendez will no doubt try to use those same allegations to claim later that an impartial trial jury cannot be found, if the case ever gets to that point.

Prosecutorial Misconduct

As noted above, the defense claims of prosecutorial and investigator misconduct are many and varied. Some of the charges of “misconduct” are a little hard to take seriously. For example, the defense protests that agents interviewed Menendez’s ex-wife while she was still in her pajamas. In response, prosecutors point out that the agents showed up and knocked on her door at the very reasonable hour of 9 a.m. on a Wednesday, and they can hardly be blamed for the fact that she was indeed still in her pajamas at that hour.

The defense also professes outrage that agents interviewed Menendez’s seventy-year old sister, underlining her age in their pleading as though to suggest it is by definition abusive to interview someone so old and frail. Given the age of many United States Senators, one has to wonder what Menendez’s colleagues would think of this claim.

The prosecutors appear to have solid responses to all of Menendez’s arguments about misconduct.  The claims appear to be based on mischaracterizations of the investigation and evidence or misstatements of the law. The defense would like the public and the judge to think this is another Ted Stevens case, but the allegations of misconduct in this case are not likely to go anywhere.

I’m still expecting the government to make Melgen an offer he can’t refuse in exchange for rolling over on Menendez. In the meantime, the motions hearing is set for September 17. There should be plenty of fireworks.

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Bob and Maureen McDonnell: Running Out of Legal Options

Update 8/31/15:  The Supreme Court today granted McDonnell’s request to remain free on bond while the Court considers his petition for certiorari.  I think this is surprising, and has to be considered a very good sign for McDonell.  It suggests there is some level of interest at the high court in reviewing the case, even though not a single judge so far in the lower courts has agreed with McDonnell’s arguments.  Stay tuned.

The former Governor and First Lady of Virginia are rapidly running out of both time and options to avoid going to prison.

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Bob McDonnell and his wife Maureen were convicted last September on multiple counts of corruption.  The jury found that they conspired together over a two-year period to use the powers of the Governor’s office to help a businessman, Jonnie Williams, who was trying to promote his dietary supplement Anatabloc within the state government.  In exchange, Williams gave the McDonnells $120,000 in interest-free, no-paperwork “loans,” along with gifts including a Rolex watch, designer dresses, golf outings and luxury vacations, and payment of the catering bill for their daughter’s wedding.  Following their convictions, Bob McDonnell was sentenced to two years in prison and Maureen was sentenced to one year and one day.

Although the McDonnells were tried together, their appeals have proceeded on separate tracks.  Maureen’s appeal to the U.S. Court of Appeals for the Fourth Circuit has not even been argued yet, and is currently scheduled for a hearing on October 29.  Bob’s appeal was argued last May, and a three-judge panel of the Fourth Circuit unanimously affirmed his conviction on July 10.

The former Governor asked the Fourth Circuit for a rehearing by the same judges or for an en banc rehearing by the entire court.  The court denied both requests on August 11, with not a single judge voting to re-hear McDonnell’s case.

McDonnell has been free on bond during his appeal, but the Fourth Circuit has now rejected his request to remain in that status while he petitions the U.S. Supreme Court to hear his case.  The Fourth Circuit ruled that the mandate  — the order from the trial judge enforcing the verdict and sentence – will issue this Thursday, August 27.  Once the mandate issues, the U.S. Bureau of Prisons will designate a facility where McDonnell will serve his sentence and he will be given a date to report to prison.  This could happen in a matter of only a few weeks.

McDonnell’s lawyers have filed a last-ditch appeal with the U.S. Supreme Court, asking that he remain free while he files a petition for certiorari asking the Court to review the Fourth Circuit’s decision.  To succeed, they have to persuade the Supreme Court that there is a reasonable likelihood not only that four Justices will vote to take the case but also that McDonnell will ultimately prevail.  That’s a real uphill battle.

McDonnell’s principal argument on appeal is that his conviction represents a dangerous and unprecedented expansion of federal corruption law because he did not perform any “official acts” in exchange for the gifts that he unquestionably received from Williams.  But McDonnell’s lawyers have been making that same argument since before he was indicted, and so far not a single judge (not to mention a single juror) has agreed.

When all prior judges to consider an argument have unanimously rejected it, it’s pretty hard to see five Justices of the Supreme Court buying in.  When you couple that with the fact that the Supreme Court agrees to review fewer than 1% of the petitions it receives, it looks pretty unlikely that the Court will disturb the Fourth Circuit’s decision that McDonnell should begin serving his sentence.

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Bob McDonnell’s Arguments on Appeal

Bob McDonnell made a number of arguments in his appeal to the Fourth Circuit, including that the judge did not adequately question potential jurors, that he and Maureen should have been tried separately, and that the judge made a number of errors when ruling on evidence during the trial.  (You can find my detailed discussion of these appellate issues here.)  As I expected, none of these gained much traction in the Court of Appeals.  The only substantial issue – which the Fourth Circuit referred to as “the core of this appeal” — was McDonnell’s claim that he could not be convicted of corruption because he never performed any “official acts” within the meaning of federal corruption laws.

McDonnell had an extraordinary amount of support, including briefs filed by politicians from across the county and a number of former Virginia Attorneys General arguing that his conviction was unwarranted and could spell the end of politics as we know it.  But the Court of Appeals had no trouble finding that McDonnell had acted corruptly and that these claims were overblown.

The Court of Appeals noted that both sides in the case, as well as the district court judge, had proceeded on the theory that the relevant definition of “official acts” is the one found in the federal bribery statute, 18 U.S.C. § 201 – a statute that was not part of McDonnell’s case. As I’ve argued elsewhere, this is a dubious proposition — but since all sides agreed the Fourth Circuit chose to accept it, at least for the purposes of McDonnell’s appeal.

Even using this defense-friendly definition, the court had no trouble finding that McDonnell had agreed to engage in a number of official acts in exchange for the gifts from Williams. These included acting on questions concerning whether Virginia universities would fund research studies of Anatabloc, whether a state-created tobacco commission would allocate grant money to study it, and whether Anatabloc would become a covered drug under the health plan for Virginia employees.

These were all matters over which McDonnell, as the state’s chief executive, had substantial influence. The court concluded that the evidence at trial demonstrated he had taken steps to try to influence those matters for Williams’ benefit. As the court noted, it was not necessary for the government to prove that McDonnell actually succeeded, or that Williams actually received a state grant or a research study. Corruption is established by the deal, where the public official agrees to exercise influence in exchange for things of value. It doesn’t matter if the official ultimately succeeds or even if he actually has the power to do what he promised, so long as he makes a corrupt bargain to sell the power and influence of his office.

The court concluded that the evidence showed McDonnell did not merely agree but actually took some concrete steps to try to fulfill his end of the deal. Those steps included directing staff to meet with Williams and to look into conducting the Anatabloc research studies, and holding a “product launch” event for Anatabloc at the Governor’s mansion.

In the end, the Court of Appeals unanimously concluded that, despite the protestations of McDonnell and his allies, this case was really not all that remarkable. In exchange for a string of gifts, McDonnell used the power and prestige of his office to try to further Williams’ business interests. The only thing unusual about the case was that, in the end, Williams did not in fact get much in exchange for his efforts – but as the government has pointed out, that McDonnell was not successful in fulfilling his end of the bargain does not change the fact that the bargain itself was corrupt. As a legal matter, McDonnell does not benefit simply because his efforts to help Williams were ultimately unsuccessful.

Maureen McDonnell’s Arguments on Appeal

Maureen McDonnell’s lawyers are in an unenviable position. The Court of Appeals has already rejected all of Bob’s arguments, and her arguments are virtually the same.  Her lawyers have acknowledged, as they must, that there is “substantial overlap” between the issues in her appeal and the issues already decided in the government’s favor in her husband’s case.

So in preparing for the October 29 argument, Maureen’s lawyers are left trying to find some way to convince the Court that her case and her legal issues are actually different. This is basically like trying to find a good-looking deck chair on the Titanic.

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Maureen’s primary argument is that she is not a public official, and so she should be held to a more lenient standard. Her lawyers claim that as a “high-school educated spouse of a politician,” she could not possibly have known it was improper for her and the Governor to try to help Williams in exchange for all of his largesse.

I think this argument is extremely unlikely to fly. Maureen was charged with conspiring with her husband to sell his influence as a public official, so there was no requirement that she be a public official herself. It is common for those who are not public officials to be charged with corruption, either through a conspiracy charge as in this case or because they are the ones paying the bribes.

As for her state of mind, prosecutors did not need to show that Maureen was some kind of legal expert thoroughly familiar with the ins and outs of federal bribery law and the nuances of the “official act” definition. They only needed to show that she agreed to act corruptly, meaning that she agreed with Bob to exercise the powers of his office in exchange for Williams’ gifts. There was ample evidence of this during the trial.

The other problem with this defense is that there was evidence at trial demonstrating that Maureen knew the relationship with Williams was improper. The most significant was testimony concerning how she sold her stock in Williams’ company just before she had to file a government financial disclosure report, only to buy it right back after the report was filed. She also attempted to transfer ownership of that stock to her children, so it would not be reported and would remain concealed from the public.

There also was evidence that Maureen was told by the Governor’s staff that she could not allow Williams to buy her inaugural gown, as he had offered to do. (He later made up for it, though, by taking her on a shopping spree in New York and buying her several designer dresses.) In short, the suggestion that Maureen was blissfully unaware that there might be anything at all improper about the relationship with Williams simply does not withstand scrutiny.

Finally, questions about a defendant’s state of mind and intent are classic jury questions. These factual issues were fully argued at trial and the jury unanimously found against her. There is no real legal basis here for an appellate court to disturb that finding.

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I think it’s extremely unlikely that Maureen will succeed on appeal where Bob did not, and also unlikely that the Supreme Court will allow Bob to remain on bond or agree to review the Fourth Circuit’s decision. That means Virginia’s former Governor will probably be behind bars before the end of the year, with his wife following shortly thereafter.

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