But does it amount to a quid pro quo, or just a favor for a good friend? The jury in the corruption trial of Robert Menendez heard testimony from a former aide to the Democratic Senator from New Jersey, describing how Menendez intervened multiple times to get visas for friends of co-defendant Salomon Melgen. When his recommendations didn’t work with consular officials in the Dominican Republic, Menendez leaned on the ambassador, the aide testified:
Under direct questioning from the government, former senior policy adviser Mark Lopes testified that Menendez emailed him in 2008 authorizing a letter of support from Menendez to be sent to consular officials regarding the visa applications of two sisters from the Dominican Republic.
One of the emails sent around the time had a subject line that read: “Dr. Melgen’s request.”
When the applications were denied despite Menendez’s signed letter, Lopes testified, Menendez instructed him to reach out to the U.S. ambassador.
The sisters were friends of Florida ophthalmologist Salomon Melgen, a longtime friend of Menendez’s. The two men were indicted in 2015 and face multiple fraud and bribery charges. Prosecutors said they orchestrated a scheme in which Melgen gave Menendez gifts and campaign donations in exchange for Menendez’s political influence.
That’s one example of the quo. What about the quid, with apologies to our British friends, who use “quid” in a more literal sense? An American Express executive explained one explicit benefit Menendez got from Melgen that came from the flashy former doctor, recently convicted of Medicare fraud in a related case:
Sen. Robert Menendez said in a 2010 email that he would reimburse his friend, Florida eye doctor Salomon Melgen, for the nearly 650,000 American Express points Melgen used to purchase a three-night stay at a hotel in Paris for the senator — as soon as Menendez accumulated enough points himself.
But it would have taken Menendez about 30 years to accumulate those points at the rate he was spending then, an American Express executive testified at Menendez’s corruption trial. And three years later, when Menendez for the first time redeemed his own American Express points — more than 135,000 of them — he used them instead to purchase a high-end grill that was shipped to New Jersey, according to the witness.
How many points did Menendez have on his own AmEx account at the time of the Paris stay? About 58,000, Andrew Thomas said, and it took three more years to get to 135,000. Prosecutors say that this shows Menendez was willing to prostitute himself and his office in order to live the lifestyles of the rich and fraudulent, Politico’s Matt Freidman reports:
Prosecutors contend that Melgen’s purchase of the hotel room for Menendez, a Democrat, as well as flights on his private jet for the senator and other gifts — including more than $750,000 in political contributions — were exchanged for official favors Menendez did for Melgen, including securing the visas.
The prosecution’s painstaking detailing of the credit card points episode fed into the narrative they introduced in opening statements: That Menendez traded his power for a lifestyle he couldn’t afford on a senator’s salary.
It’s not all going the prosecution’s way, the Associated Press reports. Judge William Walls is known for his discipline, and he exercised a little of it on Justice Department prosecutor J.P. Cooney:
Walls sent the jury out of the room and took the prosecution to task for, in his opinion, implying that Menendez stayed at the hotel to “shack up” with a female friend, a suggestion Cooney denied.
“Do you know why I laugh?” Walls asked at one point. “Because it’s ridiculous what you are asserting.”
“Even if you were writing a novel, your editor would strike it,” he added. “That’s junk.”
Ridiculous? That seems harsh, considering human nature, but it’s certainly speculative. Unless the prosecution has a witness or other evidence to back up that assertion, Walls was right to rebuke the prosecution for inserting unsubstantiated and inflammatory speculation into the exchange.
On the visa efforts, Lopes insisted during cross-examination that Menendez’ intervention wasn’t improper. That’s for the jury to decide, however, and gets to the heart of the question after the Supreme Court’s decision in McDonnell v US. The prosecution can show official acts, and they can show financial incentives, but they have to show a significant connection between the two in order to win a conviction on corruption charges. Those official acts have to be more than just meetings and phone calls too, as Chief Justice John Roberts wrote at the time:
Governor McDonnell, in contrast, contends that statutory context compels a more circumscribed reading, limiting “official acts” to those acts that “direct a particular resolution of a specific governmental decision,” or that pressure another official to do so. Brief for Petitioner 44, 51. He also claims that “vague corruption laws” such as §201 implicate serious constitutional concerns, militating “in favor of a narrow, cautious reading of these criminal statutes.” Id., at 21.
Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”
Letters to consulates and calls to ambassadors would definitely be official acts, whether or not they succeeded in getting visas approved. A jury will complete discretion on whether the prosecutor can draw enough of a line between the, ahem, generosity of Melgen and the actions of Menendez to support a conviction — a point that Roberts also made in McDonnell:
It is up to the jury, under the facts of the case, to determine whether the public official agreed to perform an “official act” at the time of the alleged quid pro quo. The jury may consider a broad range of pertinent evidence, including the nature of the transaction, to answer that question.
Given the amount of financial benefits Menendez got from his corrupt donor, don’t be surprised if they conclude that Menendez was crooked — and if they do, Menendez had better not expect the Supreme Court to let him off the hook.