Menendez’s Bribery Case May Hinge on ‘Official Acts’ Meaning

(Bloomberg) -
Menendez trial
Sen. Bob Menendez arrives at the federal courthouse in Newark, N.J., for jury selection on Tuesday. (Ed Murray/NJ Advance Media via AP)

The question of whether Robert Menendez will remain one of the most powerful Democrats in the U.S. Senate or go to prison could turn on whether favors he did for a large donor are deemed “official acts.”

The trial, set to start Sept. 6, is expected to feature dry discussions about Medicare reimbursement policy as well as testimony about how Salomon Melgen, a married Florida eye doctor, sought visas for friends from Brazil, Ukraine and the Dominican Republic. Melgen is accused of bribing Menendez for his help with the visas and other government disputes.

Prosecutors say Menendez, a U.S. senator from New Jersey since 2006, engaged in “official acts” to help Melgen. Defense lawyers say Menendez’s phone calls and meetings on Melgen’s behalf were not official acts — but rather a longtime friend helping another out.

The U.S. Supreme Court narrowed the definition of official acts last year when it set aside the conviction of former Virginia governor Bob McDonnell. The high court ruled that prosecutors must prove how a public official engaged in a corrupt “quid pro quo,” saying they must take specific acts in exchange for things of value.

“It’s harder today for the government to prove what constitutes an official act,” said Adam Lurie, a former federal prosecutor. “They have to prove that what the senator did is something he actually had control over. The McDonnell case has really muddied the water.”

Jury selection began with written questionnaires in June, and the final phase is scheduled to begin Tuesday with lawyers interviewing potential panelists in Newark, New Jersey. Once the trial gets underway, it is expected to last about two months.

“I’m looking forward to picking a good jury,” Menendez said as he walked into the courthouse. “As I’ve said all along, I expect to be exonerated.”

Court security officers barred entry to the courtroom for almost two hours on Tuesday morning while Menendez and lawyers on the case were inside. When Menendez departed, lawyers said he was arraigned on a revised indictment and pleaded not guilty. Lawyers said that other procedural matters were discussed.

No explanation was provided on why U.S. District Judge William Walls sealed the courtroom. Arraignments are nearly always public proceedings. A group of potential jurors were brought to the courtroom for questioning by the lawyers. A handful of reporters were allowed into the courtroom. Court officials said there wasn’t enough room for others.

Prosecutors say Melgen gave hundreds of thousands of dollars in campaign contributions to support Menendez, as well as trips on private jets and a three-night stay at a Paris hotel valued at $4,934. They allege Menendez received a “stream of benefits” and acted on behalf of Melgen “as opportunities arose,” including in a Medicare overbilling dispute, a contract standoff with the Dominican Republic, and visa applications for the friends.

Menendez and Melgen are charged with conspiracy, bribery, honest-services fraud and violating the Travel Act, which prohibits foreign travel for the purpose of committing crimes. Menendez is also accused of making false statements by failing to disclose Melgen’s gifts on ethics forms.

The outcome could have important implications for the balance of power in the U.S. Senate. Republicans hold a narrow 52-seat majority, with Democrats controlling 46 seats and counting on two independents who caucus with them.

If Menendez is convicted and resigns, appointing a replacement falls to the New Jersey governor. Republican Chris Christie leaves office on Jan. 16, and a Democrat is strongly favored in the race to succeed him.

“The big thing is whether this would play out sooner than that, giving Republicans one more seat with which to work,” says Bruce Oppenheimer, a political science professor at Vanderbilt University.

In all likelihood, Menendez’s seat will remain in Democratic hands. If he’s convicted, two-thirds of the Senate would still have to vote to expel him. That would require at least a dozen Democrats to vote for his ouster — a remote possibility in the divided Senate. If Menendez were to resign, he could also try to delay it until a Democrat takes office.

In the governor’s race, Democrat Philip Murphy is leading Republican Kim Guadagno by 54 percent to 33 percent, according to an NBC 4 New York/Marist Poll last month.

If the Republicans manage to replace Menendez, it could have a profound impact on possible votes over the tax code and infrastructure. Senate Republicans are still stinging from their failure to repeal the Affordable Care Act, when three of their members sided with Democrats.

The Menendez case has already spawned legal skirmishes, including accusations that the Justice Department engaged in prosecutorial misconduct. FBI agents interviewed more than 200 witnesses, including three friends of Menendez and three of Melgen. U.S. District Judge William Walls ruled that prosecutors and agents acted properly.

Walls hasn’t ruled on whether Menendez’s actions constituted official acts and may leave that question to the jury. Defense lawyers say Menendez didn’t engage in a “formal exercise of governmental power” as defined by the Supreme Court.

“Simply meeting with Executive Branch officials to inquire about an issue or advocate that they do something, or working with his staff to prepare for such meetings would not qualify as an ‘official act,'” the lawyers wrote in an Aug. 2 filing.

But prosecutors said the Supreme Court requires them to pass a two-step test: showing that a cause or controversy comes before a public official who then engages in an action or decision.

“Under the defendants’ flawed interpretation of ‘official act,’ a member of Congress can never be prosecuted for bribery if he accepts things of value in exchange for pressuring executive branch officials,” prosecutors wrote.

After his 2015 indictment, Menendez said that he and Melgen had been friends for decades and never made a corrupt agreement to break the law.

“We celebrate holidays together, have been there for family weddings and funerals, and have given each other birthday, holiday and wedding presents – just as friends do,” Menendez told reporters.

Melgen was convicted in April of Medicare fraud in a separate trial in Florida and is awaiting sentencing. One key question for the upcoming trial is whether Melgen will plead guilty and testify against Menendez in a bid for leniency.