A good question, but perhaps not the question. Prosecutors have to prove that Senator Robert Menendez (D-NJ) purposely traded official acts explicitly for monetary gains to benefit longtime crony and supporter Salomon Melgen in order to win a conviction for corruption. It’s not just enough to prove the quid and the quo, but also the pro — the intent to benefit from corruption. Short of a confession or an admission on tape, that state of mind has to get proven indirectly.
Politico’s Matt Freidman, who has stayed on top of the trial, reports that prosecutors hope to convince a jury by pointing out that Menendez failed to properly disclose some of those “gifts” from Melgen. But can they prove that Menendez intended to hide them, rather than just forgetting to add them to disclosure forms?
Prosecutors on Wednesday zeroed in on the charge legal experts say Sen. Bob Menendez may be most vulnerable: He concealed gifts he received from Florida eye doctor Salomon Melgen.
Prosecutor Monique Abrishami began Wednesday’s proceedings in Menendez’s corruption trial with a video clip from a CNN interview in February of this year, which reporter Dana Bash questioned why the senator had reimbursed Melgen $58,500 for two round-trips on his private jet more than two years after the fact. …
Prosecutors also showed a January 2013 press release from Menendez’s office that said the Democratic senator “has traveled on Dr. Melgen’s plane on three occasions, all of which have been paid for and reported appropriately.”
In fact, prosecutors showed a chart with many more flights Menendez had taken on Melgen’s private jet, and other travel Menendez undertook that was paid for by Melgen — including a first-class commercial flight from Newark to West Palm Beach, Fla.
Menendez eventually revised his disclosure forms to include some of these trips, but not all of them. That too can help the prosecution set this up as an indicator of guilt, both in the reporting delay and in the persistence of not reporting some of this at all. However, it’s not a slam dunk. The defense can argue that the flights were just part of the friendship between the two, and that’s exactly how they have begun to frame it. In this case, the more flights there are, the better they can make the argument, ironically:
On cross-examination by Menendez attorney Abbe Lowell, Mohl confirmed Menendez’s passport showed more than two dozen trips to the Dominican Republic from the late 1990s through 2013, most paid for by Menendez.
The defense wants to show Menendez didn’t behave any differently during the alleged bribery scheme than he did over years of friendship with Melgen, and that the free flights were a gesture of that friendship.
Prosecutors have introduced testimony that Menendez didn’t fly on Melgen’s private jet until 2006, the year Menendez was named to the Senate to replace Jon Corzine and, later that year, elected to a full term. Menendez had served in the House before that.
That defense seems a bit weak, but remember that failure to report by itself is not a crime — it’s a violation of Senate rules [see update below]. A jury has to believe that the failure to report was a deliberate that demonstrates an intent to cover up the trips in order to avoid exposing a bribery pact. The defense could answer that by suggesting that all Menendez wanted to do was avoid making his friendship with Melgen an issue in an election, but it might be tough to convince a jury of that argument. Either Menendez was forgetful or he was corrupt.
In other news, the trial is now expected to last at least through Thanksgiving. As CNN’s Laura Jarrett points out, that may not leave much time for Republicans to benefit from a conviction:
Last week the judge approved a trial schedule stretching to Thanksgiving, with several shortened weeks to accommodate Jewish holidays — dimming the possibility that Republican Gov. Chris Christie will get a shot at selecting at Menendez’s replacement if he’s convicted before Christie leaves office in January.
“The longer it goes — the better for Democrats,” Seton Hall University political science professor Matthew Hale said. “If the trial stretches out past January 16, regardless of the outcome, the Democrats will be in a good position to hold the seat.”
Most of the hypothetical benefit expires in ten days anyway. After September 30th, the two reconciliation vehicles created by the Republican Senate majority expire — for ObamaCare repeal and tax reform. Any bills or budget items after that will require 60 votes to pass cloture; appointment confirmations will only take a simple majority, but the GOP has enough unity to carry those without picking up an extra seat. A boost from a Menendez exit was always a low-percentage possibility, but in less than two weeks it’s simply moot.
Update: Actually, a purposeful failure to disclose is both a violation of Senate rules and a crime, attorney David Safavian reminded me on Twitter:
Submitting a false financial disclosure is more than a violation of Senate rules. Under 18USC1001, its a prosecutable false statement.
— David Safavian (@DSafavianEsq) September 21, 2017
The law’s text can be found here, and has come up before — notably, in theories of potential prosecution of Hillary Clinton. According to this website, though, the Department of Justice adopted a policy three years ago that prosecutions would only be undertaken under 18 USC 1001 when “federal prosecutors [can] show beyond a reasonable doubt that the defendant knew his or her statement was unlawful – not just that the statement was false.” With that restrictions, prosecutors would still have to prove the corruption to meet that test.