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 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. The judge has repeatedly rejected this argument. As I argued 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 agreement. In other words, the corrupt agreement may be, “I’ll pay 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 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 in connection with some future potential 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 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 terminology – “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 — a different component of the offense — 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 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.

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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.

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What to Watch For at the Bob Menendez Trial

After more than two years of legal maneuvering, the trial of U.S. Senator Robert Menendez begins today in New Jersey. Menendez and his co-defendant, Florida ophthalmologist Salomon Melgen, face eighteen counts of bribery and related offenses.

Menendez and Melgen were indicted in April of 2015. The trial has been delayed while Menendez pursued claims that his prosecution is barred by the Constitution’s Speech or Debate clause. The trail judge rejected his arguments and the U.S. Court of Appeals for the Third Circuit affirmed that decision. The Supreme Court declined to hear Menendez’s appeal, which finally cleared the way for trial to begin this fall.

This is the first criminal trial of a United States Senator in nearly a decade. It’s the highest profile corruption case to go to trial since the Supreme Court’s 2016 decision in McDonnell v. United States dramatically altered the landscape for corruption prosecutions. And given the close balance of power in the U.S. Senate, Menendez’s fate could have significant political implications for the entire country.

So in addition to all the nonstop drama in Washington these days, the drama unfolding in a Newark federal courtroom for the next six to eight weeks is worthy of attention. Here are some things to watch for at Menendez’s trial.

Federal courthouse, Newark NJ

The Allegations

The government alleges Menendez and Melgen engaged in a bribery scheme that began shortly after Menendez was first elected to the Senate in 2006 and lasted for about seven years. The government charges that Menendez agreed to use the power of his office to seek to benefit Melgen in exchange for a series of valuable gifts and donations.

Melgen’s gifts to Menendez allegedly included the following:

  • On multiple occasions Menendez, sometimes with a guest, stayed free of charge at Melgen’s villa in a luxury resort in the Dominican Republic.
  • On more than a dozen occasions Melgen flew Menendez, and sometimes his guest, to and from the Dominican villa on Melgen’s private jet. When Melgen’s jet wasn’t available, he arranged for other private jet transport for Menendez or purchased a first-class ticket for him.
  • In 2010 Melgen used his American Express points to book a suite at a Paris hotel, valued at nearly $5,000, for Menendez to use for a three day vacation.
  • In 2012 Melgen made more than $750,000 in campaign donations to benefit Menendez, as well as a $20,000 contribution to Menendez’s legal defense fund.

In return, the government alleges Menendez did the following for Melgen:

  • Menendez pressured the State Department to influence the government of the Dominican Republic to move forward on a valuable contract owned by Melgen to provide cargo screening services in Dominican ports.
  • Menendez tried to stop U.S. Customs and Border Protection from donating shipping container monitoring and inspection equipment to the Dominican Republic, because that equipment would have undermined the value of Melgen’s contract.
  • Menendez personally and repeatedly intervened on Melgen’s behalf with the Department of Health and Human Services (including meeting personally with the Secretary of HHS) in a proceeding where HHS claimed Melgen had overbilled Medicare by about $9 million.
  • Menendez and his staff worked to influence State Department officials to grant visas for three foreign girlfriends of Melgen to visit the United States.

The indictment charges Menendez and Melgen with conspiracy, bribery, honest services fraud, and the travel act. It also charges Menendez with false statements for failing to disclose the gifts from Melgen on his annual Ethics in Government Act reports. (For a more detailed analysis of the particular charges, you can read my post here.)

Melgen has separate legal problems of his own related to his Medicare billings. This past April he was convicted of dozens of counts of Medicare fraud in Florida. His sentencing in that case has been postponed pending the outcome of this trial.

The Central Issue: Was There Corrupt Intent?

The key issue in the case is going to be proving corrupt intent, the quid pro quo required for a bribery conviction. There’s not going to be much dispute about the underlying events. No one will deny that the private jet trips, vacations, and political donations took place. Menendez will dispute some details of his various meetings on Melgen’s behalf, but no one will deny the meetings happened.

As in so many white collar cases, the key will be proving what was going on in the defendants’ minds. The government needs to show that Melgen gave the gifts because he wanted some official action from Menendez in return, and that Menendez accepted the gifts with that same understanding.

The defendants claim there was no corrupt intent. Melgen says the things he provided to Menendez were strictly out of friendship. Menendez claims that anything he did on Melgen’s behalf was not because of the gifts but was either part of his Senate legislative and oversight duties or simply favors on behalf of an old friend.

Of course friendship and corruption are not mutually exclusive. Just as my friend and I can rob a bank together, my Senator friend and I can engage in a corruption scheme. Even if friendship was part of the motivation for Melgen’s largess, that is not a defense so long as at least part of the motive was a corrupt intent to influence – and to be influenced in – the performance of official acts.

The sheer lavishness of the gifts will make the “friendship” argument challenging for the defense. There will likely not be many jurors who can relate to the idea of friends giving each other private jet travel and luxury vacations.

The other challenge for the “friendship” defense is that it seems to paint a picture of an oddly one-sided friendship. Friends do give each other gifts, but it is typically more of a two-way street. Melgen gave Menendez about a million dollars worth of gifts, but what did Menendez ever give Melgen in return — other than the exercise of his official powers?

Senator Menendez faces multiple counts of corruption

Senator Bob Menendez

Proving Corrupt Intent

The best way for the government to prove intent in a bribery scheme is to have the cooperation and testimony of one side of the corrupt transaction. For example, in the Bob McDonnell case the man alleged to have bribed McDonnell was granted immunity and testified as the government’s star witness.

There has been a lot of speculation that Melgen might plead guilty and agree to testify against Menendez. Certainly he is under a lot of pressure to cut a deal to benefit himself, given his separate conviction in Florida where he faces substantial prison time. When the sentencing in that case was delayed, I thought it might mean Melgen was about to cooperate. But there has been no sign Melgen is going to roll over on Menendez. If it were going to happen, it probably would have happened by now.

Absent testimony from Melgen, the government will be left to prove intent largely by circumstantial evidence. Timing of gifts and corresponding actions will be important, and can raise an inference of a quid pro quo. For example, the most significant gifts from Melgen – more than $750,000 in contributions to various campaign funds and a legal defense fund – came in 2012. That was the same time Menendez was working most vigorously on Melgen’s behalf in both the port contract dispute and the Medicare billing dispute. In some instances, Menendez met with executive branch officials on Melgen’s behalf the same week – or even the same day — that Melgen made a substantial campaign contribution.

Concealment also is important for proof of intent. That’s where the evidence that Menendez failed to report the gifts on his financial disclosure forms will come into play. Although the false statements charge for failing to report the gifts is only a single count of the indictment, its significance is in helping to establish corrupt intent for the entire case. The government will argue Menendez failed to disclose the gifts because he knew they were corrupt and improper.

Other examples of deception also will help prove corrupt intent. For example, the government will present evidence that once the private jet trips came to light, Menendez made false public statements claiming there had only been three such trips when in fact there were more than a dozen.

In addition, there will be evidence that some of the campaign donations were made by Melgen’s family members, to keep them within legal limits, but that Melgen then used corporate funds to pay the family members back. This amounts to laundering of campaign contributions to disguise the fact that all of the money is actually coming from Melgen’s corporation and helps conceal the depth of the connection between Melgen and Menendez.

McDonnell and “Official Acts”

A key legal issue is whether the Supreme Court’s recent decision in the Bob McDonnell case provides any cover for Menendez. In McDonnell the Court ruled that in a corruption case the government must prove the public official agreed to perform “official acts.” The Court defined official acts very narrowly, and thereby dramatically restricted the scope of federal corruption law.

Menendez has repeatedly argued that his actions on behalf of Melgen did not amount to official acts as defined by McDonnell. This is a strictly legal defense, of a different character than the factual defense based on lack of corrupt intent. Relying on McDonnell Menendez can basically argue, “Even if there was a quid pro quo and I acted in exchange for the gifts that Melgen gave me, that can’t amount to bribery because the actions I took were not significant enough to be official acts.”

Menendez actually undercut his own “official acts” arguments earlier in the case. When arguing that his actions were protected by the Speech or Debate clause, he characterized them as a central part of his duties as a Senator. As the government has pointed out, in one pleading he argued that invoking oversight authority and threatening to use his power as a Senator would qualify as “official acts.” But now that his Speech or Debate arguments have been rejected, his earlier statements have come back to bite him.

With the McDonnell case itself and other cases that have been overturned since McDonnell, such as the  conviction of Sheldon Silver, former Speaker of the New York General Assembly, the problem was the jury instructions. In neither case did the courts say there was no way the defendants could be found guilty of corruption. The problem was that the trials took place before the Supreme Court announced its new “official act” requirement and so the jury instructions didn’t comply with that requirement. The government won’t have that problem here; in an entirely post-McDonnell trial it can ensure that the jury instructions comply with the McDonnell standard.

Menendez has tried unsuccessfully several times to get the judge to dismiss his case based on McDonnell. For reasons that I’ve explained in detail here and here, in the end I don’t expect this to be a problem for the prosecution. I believe the government will be able to demonstrate that Menendez did agree to perform official acts under the McDonnell standard. The key question, as noted above, is going to be why he did so – was there corrupt intent.

Possible Door Opening

The defense will have to tread lightly in some areas to avoid opening the door to the introduction of potentially damaging information. For example, the initial investigation of Menendez and Melgen was based on allegations that the two had consorted with underage prostitutes while at Melgen’s Dominican villa. Those allegations did not result in any criminal charges, but during that investigation the government learned of the other information that led to this indictment.

At various times Menendez has argued his prosecution is politically motivated, claiming, for example, that the Obama administration brought the case to punish him for his opposition to Obama’s policy towards Cuba. The government has said it has no reason to introduce evidence of the prostitution allegations and has no intention of doing so. But if the defense attacks the motives of the prosecution and raises its conspiracy theories, it may open the door to the government bringing in that evidence to explain why the case was actually begun.

Information about Melgen’s conviction for Medicare fraud, or Menendez’s protected Speech or Debate activity, also should not be a part of the case but potentially could be introduced if the defense make arguments or puts on testimony that would allow the government to raise those issues in response.

The Bottom Line

Unlike McDonnell, I don’t expect this case to turn on a technical legal argument. The case is going to come down to whether the government can prove that Menendez corruptly agreed to sell the powers of his office. That’s a factual question that ultimately will be decided by the jury.

The defense has repeatedly shown it is not afraid to be aggressive in responding to the government’s allegations. This will be a hard-fought case. The indictment paints a compelling picture of corruption, but anything can happen at a trial. Stay tuned.

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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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Third Circuit Rejects Senator Menendez Speech or Debate Claims

Update 9/13/16: Today the Third Circuit denied Menendez’s request for a rehearing en banc.  He likely will now seek review by the Supreme Court.

Update 3/20/17: Today the Supreme Court declined to hear Menendez’s appeal. The case will now go back to the trial court to proceed towards trial.

The Court of Appeals has rejected Sen. Menendez's Speech or Debate claims

Senator Bob Menendez

The U.S. Court of Appeals for the Third Circuit today rejected claims by New Jersey Senator Robert Menendez that the charges against him should be dismissed based on the speech or debate clause of the Constitution. Menendez and his co-defendant, Dr. Salomon Melgen, were indicted in April 2015 on multiple counts of corruption. The 22-count indictment charges that between 2006 and 2013 Menendez accepted numerous valuable gifts from Melgen, including multiple trips on a private jet, vacations at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to various campaign and legal defense funds.  In exchange, Menendez is alleged to have intervened on Melgen’s behalf in disputes with the Executive Branch, including an enforcement action by the Centers for Medicare and Medicaid Services based on alleged massive overbilling by Melgen’s opthalmology practice and a dispute with the U.S. Customs and Border Patrol over Melgen’s multi-million dollar contract to provide cargo screening services in Dominican ports.  (For an analysis of the indictment and the charges, see my earlier post here.)

Menendez claims that various actions he took on behalf of Melgen, including meeting with Executive Branch officials to lobby on Melgen’s behalf, were “legislative acts” protected by the speech or debate clause and thus cannot be the basis of a criminal case. The trial court rejected those claims and Menendez appealed to the Third Circuit, where a three-judge panel has now unanimously rejected them as well. (For a more detailed discussion of the speech or debate clause and Menendez’s arguments, see my post here.)

The Third Circuit found that the evidence at this stage supports the government’s claim that Menendez was acting specifically on behalf of Melgen and was not, as he had argued, pursuing more general legislative or policy goals: “Record evidence and unrebutted allegations in the Indictment cause us to conclude that the District Court did not clearly err when it found that the challenged acts were informal attempts to influence the Executive Branch toward a political resolution of Dr. Melgen’s disputes and not primarily concerned with broader issues of policy.” (p. 29)  Although there was some evidence in the record supporting Menendez’s claims, the court found he had made selective use of the facts while ignoring other evidence that cut against him: “Senator Menendez’s selective reading of the materials in the record does not persuade us that the District Court clearly erred . . . .” (p. 36)

Two important points: this was merely a pretrial determination, where allegations of the indictment were presumed to be true and Menendez had the burden of proof. As the Court of Appeals recognized, after all of the evidence comes out at trial it is possible that Menendez will ultimately prevail on his speech or debate arguments (although it seems unlikely). In addition, this appeal dealt only with the speech or debate claims and a couple of collateral issues; Menendez may still raise many other legal defenses both before and during trial. In particular, it remains to be seen whether the Supreme Court’s recent decision reversing the corruption conviction of former Virginia Governor Bob McDonnell will end up helping Menendez as well.

The Third Circuit’s decision was not a surprise; the speech or debate arguments always seemed like a long shot. The claims will, however, continue to delay the ultimate resolution of the case. Menendez will now likely ask the entire Third Circuit to review the panel decision en banc, and if that fails will petition the Supreme Court to hear the case. Even if those appeals are ultimately unsuccessful, it looks like his trial likely will be delayed well into 2017. Sidebars will keep you posted.

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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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Senator Menendez and the Speech or Debate Clause

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Update: On 9/28/15, the judge denied Menendez’s motions to dismiss the indictment based on the speech or debate clause.  Menendez is expected to appeal that ruling to the U.S. Court of Appeals for the Third Circuit.

Update 2: The Third Circuit denied Menendez’s appeal on July 29, 2016. On December 12, 2016, he filed a petition for certiorari asking the Supreme Court to review his speech or debate claims.

Update 3: The Supreme Court declined to take Menendez’s appeal on March 20, 2017. The case will now go back to the district court to proceed towards trial.

United States Senator Robert Menendez of New Jersey and his co-defendant Salomon Melgen were indicted last April on multiple counts of corruption. The indictment describes a bribery scheme: over a number of years, Melgen is alleged to have provided Menendez with numerous 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 various campaigns and a legal defense fund. In exchange, Menendez is alleged to have taken various official actions to benefit Melgen. (For a detailed analysis of the indictment, see my earlier post here.)

Since the charges were announced, some have wondered whether the Constitution’s speech or debate clause might shield Menendez’s conduct or provide him with a defense. The speech or debate clause is almost inevitably raised in any case involving a member of Congress, and has already been the subject of some preliminary skirmishing in the case. In the end, though, it seems unlikely to be much help to Menendez.

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The Speech or Debate Clause: Protection for “Legislative Acts”

The speech or debate clause, Article I, Sec. 6, Cl. 1 of the Constitution, provides that “for any Speech or Debate in either house, [Senators and Representatives] shall not be questioned in any other Place.” The clause has a long and distinguished legal history. It was based on a similar provision in the English Bill of Rights of 1689, passed in response to the Crown’s nasty habit of arresting members of Parliament for sedition when they made speeches the king didn’t like. The framers considered the clause a key part of the system of checks and balances, because it protects members of the legislative branch from harassment or intimidation by the executive or by a hostile judiciary.

The Supreme Court has made it clear over the years that the protections of the clause extend not only to actual speeches and debates on Capitol Hill but to all “legislative acts” or acts within the “legislative sphere.” Legislative acts include things such as voting, actions taken in committee, preparing committee reports, talking to other Members concerning bills, and other activities directly related to the passage of legislation.

At the same time, it’s clear that the Clause does not bar inquiry into the actions of a member of Congress simply because those actions might be related in some way to his or her official duties. Nor does it provide Members of Congress with immunity from prosecution for official corruption. As long as the government can prove its case without reference to legislative acts, the speech or debate clause presents no bar.

A leading Supreme Court case interpreting the clause involved Alaska Senator Mike Gravel, who in 1971 convened a Senate subcommittee hearing at which he read extensively from the Pentagon Papers and placed the entire 47 volumes into the Congressional Record. He later arranged for private publication of the papers. A grand jury investigating possible criminal conduct in connection with the release of the papers subpoenaed an aide to Gravel to question him about these events, and Gravel moved to quash the subpoena.

The Court first held it was undeniable that Gravel himself could not be questioned about or punished for his behavior in the Senate. That was core speech or debate conduct. The Court also held that the protections of the clause must extend to legislative aides, if their conduct would have been a protected legislative act if performed by the Member himself. Accordingly, Gravel’s aide likewise could not be questioned in the grand jury about events that took place on the Senate floor.

The arrangement for private publication of the papers, however, was another matter. The Court noted that the speech or debate clause does not cover everything done by a Member of Congress, and the mere fact that things were done in an official capacity does not make them protected “legislative acts:”

The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.

As a result, the Court concluded, the grand jury was free to inquire into areas such as how Gravel received the papers in the first place, as well as his arrangements for private publication. Even though he did these things in his capacity as a Senator, they were not legislative acts protected by the clause.

In a companion case to Gravel, United States v. Brewster, the Court stated that evidence will be barred only if it becomes “necessary to inquire into how [the defendant] spoke, how he debated, how he voted, or anything he did in the chamber or in committee.” Activities need not take place inside the Capitol to be protected however; other actions directly related to the legislative process, such as preparing reports or conducting investigations related to legislation, are also covered.

On the other hand, acts such as performing constituent services, writing newsletters, meeting with Executive branch agencies, and giving speeches outside of Congress, although part of a Member’s job, are not protected by the speech or debate clause. These activities are considered political in nature and not related to the core legislative duties of debating and enacting legislation.

Members of Congress under investigation often argue that virtually all of their activities have some role to play in the legislative process and should be protected, but courts generally reject such claims. If that were the standard, Members of Congress would end up virtually immune from prosecution for corruption or any other job-related misconduct. As the Supreme Court noted in Brewster, the Clause “does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions.”

The key in any speech or debate case, therefore, is to determine whether proof of the charges will require any inquiry into protected legislative acts. Evidence concerning legislative acts will be prohibited, even if that ends up meaning the defendant may not be prosecuted at all. But if the government can prove its case without evidence of or inquiry into legislative acts, the case may proceed.

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Speech or Debate in the Menendez Case

On the face of the indictment, the actions alleged to have been taken by Menendez and his staff do not appear to be legislative acts that would be protected by the speech or debate clause. The actions fall into three main categories:

Visas:  In 2007 and 2008, Menendez and his staff contacted various embassy and State Department personnel on Melgen’s behalf, in order to help three different girlfriends of Melgen — one from Brazil, one from Ukraine, and one from the Dominican Republic — obtain visas to come to the United States. These efforts consisted of e-mails, phone calls and letters from Menendez and his staff in support of the visa applications.

Port Screening Contract:  Melgen owned an interest in a company that had a contract with the government of the Dominican Republic to provide x-ray screening of all cargo entering Dominican ports. The contract, potentially worth many millions of dollars, had been tied up in disputes and work had not begun. Beginning in 2012, Menendez and his staff began contacting State Department officials to urge them to pressure the Dominican government to implement the contract. At one point Menendez allegedly met with an Assistant Secretary of State to discuss the issue, told him he was unsatisfied with the way State was handling it, and 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 taking an eye medication that came in a vial designed for a single patient and using it to treat two or three patients. He would then bill Medicare as if he had purchased a separate vial for each individual patient. When Medicare discovered this practice they began pursuing claims against Melgen for overbilling. Melgen was recently indicted in a separate Medicare fraud case in Florida, based in part on this same overbilling scheme.

Menendez and his staff worked for several years to try to help Melgen resolve his dispute with Medicare. This included Menendez himself meeting with Health and Human Services Secretary Kathleen Sebelius and with Marilyn Tavenner, the acting director for the Center for Medicare and Medicaid Services.

There doesn’t seem to be much here that would raise a speech or debate clause issue. All of the actions described involve Menendez or his staff interacting with various executive branch agencies concerning matters that do not appear directly related to legislation. The Supreme Court has consistently considered such contacts with the executive branch to be political, rather than legislative, and not protected by the clause.

Menendez’s best hope will be to try to convince the court that his actions on behalf of Melgen were actually related to some broader, legislative policy issue that he was investigating. For example, some reports have suggested that Menendez will argue his meeting with Sebelius and other actions in the Medicare dispute were related to his work on the Senate Finance Committee, which oversees Medicare’s finances. In addition, the indictment notes that Menendez threatened to hold a hearing concerning the port contract dispute, and Menendez may try to argue that any steps he took concerning that contract were part of his investigation related to the potential hearing and Congressional oversight of the matter.

We caught a glimpse during the grand jury investigation of the type of arguments Menendez likely will make. Apparently two of Menendez’s aides refused to testify in the grand jury about certain actions they or Menendez took in the Medicare and port contract disputes, citing the speech or debate clause. The district court ruled that the privilege did not apply and that the aides must testify.

On appeal, however, the Third Circuit sent the issue back to the trial court for further fact-finding concerning whether any of Menendez’s actions were related to his legislative activities. (This information was revealed when the Third Circuit’s order, which should have been under seal because it related to a grand jury investigation, was inadvertently made public for a period of time.) Apparently the government decided it could live without the evidence at the grand jury stage, and proceeded to indict the case without it rather than continue the fight.

Establishing that his contacts with different executive branch officials on Melgen’s behalf were “legislative acts” seems like an uphill battle for Menendez. On the Medicare issue, for example, the indictment is full of references to staff memos and e-mails referring to Melgen’s Medicare problem and the “Melgen case.” The correspondence is all about Melgen’s particular dispute, not about any broader policy issues or proposed legislation. The paper trail may not support any after-the-fact attempts to argue that Menendez’s efforts were really about legislation, not about helping out his benefactor.

Defense motions in the case are currently due on July 20, and we will know more about Menendez’s arguments then. Unlike most issues in a criminal trial, the burden of proving that the speech or debate clause applies falls on Menendez, not on the government. But even if he doesn’t prevail, Menendez can tie things up for quite a while. Orders concerning the application of the speech or debate clause may be appealed immediately, before trial. It’s clear from the pleadings already filed that both sides, as well as the judge, are anticipating such pre-trial appeals.

If Menendez loses on speech or debate before the trial judge his appeals could easily delay the trial, currently set for October 13, for a year or more. If the government loses on speech or debate, it will have to decide whether the evidence that ends up being excluded is so critical to the case that it needs to appeal, or whether it can proceed without it, as it apparently did in the grand jury.

The bottom line is that the speech or debate clause seems unlikely to derail the Menendez prosecution in the end.  But fights over the clause may well delay the trial well into 2016 or beyond, while Menendez, whose current term runs through 2018, continues to represent the Garden State in the United States Senate.

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