So much for that brief, shining moment when it looked like Robert Menendez — and the Democrats who continue to support him — might have had an out from his corruption trial. After initially offering a willingness to consider a motion to dismiss by Menendez’ defense team of all charges relating to bribery, Judge William Walls issued a resounding denial this morning. The prosecution can rely on the “stream of benefits” argument for bribery, Walls ruled, as the Supreme Court case cited by the defense didn’t actually speak to that at all:
The defense team urged Walls that the prosecution’s overarching “stream of benefits” theory — where many gifts are exchanged for a variety of political favors over a period of several years — cannot survive post-McDonnell. Lawyers for the defense argued that the prosecution had to show a direct link between a specific gift followed by a specific political favor.
Walls was unpersuaded. Appearing to read from a lengthy written opinion he drafted ahead of time, the judge ultimately concluded: “McDonnell is not antagonistic to the stream of benefits theory.”
“We are living in a real world of reality and common sense,” Walls said. “The jury will decide whose version of what happened or didn’t happen is more likely than not.”
That’s not quite accurate. Since this is a criminal trial, the jury will have to decide that the stream of benefits correlated with Menendez’ official acts as a quid pro quo beyond a reasonable doubt, not on a preponderance of evidence. Walls certainly understands that, but words matter when it comes to evidentiary standards. Presumably Walls will clean that up in jury instructions.
Politico notes that Walls had time to look at post-McDonnell court actions on bribery charges, and realized that the stream-of-benefits theory remained valid for judging corruption:
But after reading dozens of pages of briefings from the prosecution and defense and hearing more oral arguments, Walls was firm in siding with the prosecution. He said higher courts in recent cases have continued to rely on the stream of benefits theory.
“This court concludes that a rational jury could determine that the defendants entered into a quid pro quo agreement,” Walls said.
Walls also refused to toss out a charge that Menendez intentionally refused to disclose his gifts from Melgen.
As I wrote on Thursday, one can read all the way through the McDonnell opinion and never come across any discussion of the stream-of-benefits theory. The issue addressed by Chief Justice John Roberts in McDonnell was not the nature of benefits from a crony, but what constitutes official acts by an officeholder. Walls has already concluded that Menendez’ interventions for Salomon Melgen involved official acts, which is why the defense attacked the linkage between them and the benefits that Menendez received from Melgen.
This will likely come up before the Supreme Court again, as Menendez’ attorneys will appeal Walls’ determination if he gets convicted of any bribery counts as a result. However, eliminating the stream-of-benefits theory would make bribery almost impossible to prove in almost all circumstances, absent a receipt for the purchase of a politician. Prosecutors would be left to prove that a specific vacation perk was tied to a specific intervention, and the only way to do that would be to get tape of a conversation or some kind of correspondence spelling out that trade.
Walls ruled, wisely, that such considerations fall within the jury’s purview. They can apply their own judgment to the question of whether a stream of benefits correlates closely enough to a stream of official actions on behalf of the benefactor as to constitute bribery and corruption. That doesn’t mean this jury will convict Menendez in this case, but it does mean they’ll at least get the chance to make that decision for themselves.
Menendez’ attorneys began their defense today, and they have the unenviable task of disconnecting all those benefits from all those interventions. Abbe Lowell has an impressive track record as a defense attorney, so don’t count him out, but Walls just made it a lot harder to get Menendez out of his jam.