Are you ready for Robert Menendez’ triumphal return to the US Senate? His corruption trial took an awkward turn yesterday, as comments from the federal judge hint that the prosecution may be in trouble. After prosecutors finished their case with a rehash of the FBI investigator’s testimony, Menendez attorney Abbe Lowell filed the expected motion to dismiss — and Judge William Walls seemed open to the suggestion.
As Nick Corasaniti reports for the New York Times, the key will be how broadly Walls interprets the McDonnell decision from last year:
Judge Walls said that he interpreted Chief Justice Roberts’s ruling as invalidating the “stream of benefits” theory of bribery, which says that a bribe can occur if one party offers a thing of value to keep the other party on retainer, essentially, rather than a more straightforward trade.
“The point is this: Does ‘stream of benefits’ still live?” Judge Walls said to Peter Koski, the lead prosecutor in the case. “If ‘stream of benefits’ still lives, then you still have a chance. You still have a chance even if ‘stream of benefits’ doesn’t live, particularly with regards to false reports.” …
Judge Walls quickly stated that he believed all four interactions charged as official acts – when Mr. Menendez intervened in visa applications, two separate instances of trying to help resolve a port security contract, and intervening in a Medicare billing dispute – met the standard set by the McDonnell decision.
Where he seemed to indicate the government’s case was faltering was, in the absence of a ‘stream of benefits’ theory, how it could prove the quid pro quo necessary in a bribery case.
Walls made it clear that Menendez would still have to present a defense on charges of filing false reports on compensation. His indictment included one charge of making false statements on his Senate disclosure form under 18 USC 1001, a felony which carries a potential penalty of five years in prison and a $50,000 fine. That might still force Menendez to resign if convicted, but making that case stick with a jury after watching all twenty-one counts of bribery and corruption get dismissed is, well … problematic. Maybe a jury will still want to punish Menendez, but it seems just as likely that a jury forced to sit through weeks of testimony that turned out to be so insufficient as to get dismissed out of hand might just as well be inclined to punish the prosecution for wasting its time.
Walls’ argument is novel, as Koski pointed out, even in light of McDonnell. The decision written by Chief Justice John Roberts does not even address the “stream of benefits” theory of bribery. Roberts’ decision to dismiss the charges in the case of former Virginia governor Bob McDonnell had to do with defining “official acts,” not the correlation of benefits — and Walls has already agreed that Menendez’ actions qualify as official relating to his office. What Walls seems to be missing is a direct link between specific benefits to specific actions, and may be reluctant to see the “stream of benefits” as proof of bribery for a correlated “stream of actions,” so to speak, no matter how official they may be.
The Department of Justice could always appeal a dismissal, but that would require a new trial on the bribery counts. That could take some time to put together, and Menendez would probably continue pursuing his political career while the case went up the appellate chain.
If he does, his fellow Democrats certainly have his back. They’ve been supplying Menendez with a “stream of benefits” during his prosecution:
A number of high-ranking Democratic senators combined to contribute tens of thousands of dollars to Sen. Robert Menendez’s (D., N.J.) campaign committee this year, a review of Federal Election Commission records shows. …
Other prominent senators who did not receive campaign cash from Menendez’s PAC added to his campaign war chest this year.
Sen. Cory Booker (D., N.J) used his leadership PAC, the Purpose PAC, to make two $5,000 contributions to Menendez’s campaign on February 2. Booker, who was mentored by Menendez and appeared at the first day of his trial, has also given $20,000 to his legal expense fund, the Free Beacon reported.
Sen. Kamala Harris (D., Cali.) used her leadership PAC, the Fearless for the People PAC, to donate $5,000 to Menendez’s campaign on June 27, records show.
He may yet have the opportunity to put the cash to use.