Sen. Bob Menendez, D-N.J., declared at a news conference Monday that he will be exonerated in the federal bribery, fraud and extortion charges that we learned about Friday when an indictment against him was unsealed. The government accuses the senator, his wife and other businessmen of conspiracy to commit bribery and conspiracy to commit honest services wire fraud, and accuses the senator and his wife of conspiracy to commit extortion under the color of official right, defined by federal law as "obtaining of property from another, with his consent ... under color of official right."
While all defendants charged with a crime are presumed innocent until proven guilty, Menendez shouldn’t feel so confident about his odds of being cleared.
While all defendants charged with a crime are presumed innocent until proven guilty, Menendez shouldn’t feel so confident about his odds of being cleared. These cases are tough to defend, contrary to Menendez’s assertions Monday and contrary to a myth that the Supreme Court has made it “extremely difficult” to convict in modern federal corruption cases.
It hasn’t.
In 2016, the Supreme Court vacated former Virginia Gov. Robert McDonnell’s conviction, narrowing the definition of one essential element in honest services fraud and extortion under color of right cases: the “official act.” Writing for a unanimous court, Chief Justice John Roberts expressed “concern … with the broader legal implications” of the Department of Justice’s “boundless interpretation of the federal bribery statute.” The court concluded that taking meetings, making phone calls and hosting events, without more, does not meet the “official act” requirement.
Roberts, likely anticipating criticism, wrote that this “more limited interpretation of the term ‘official act’ [still left] ample room for prosecuting corruption.” Even so, after McDonnell was handed down, many critics of the ruling expressed concern that the Supreme Court had “complicated” or “eviscerated” corruption prosecutions, making convictions “almost impossible.”
It was an understandable concern then. But more than seven years later, McDonnell hasn’t hampered federal corruption cases. And it may not be much of an obstacle as the government pursues a conviction of Menendez.
First: Just because meetings and phone calls by themselves aren’t enough after McDonnell, that doesn’t mean the government can’t introduce evidence of nefarious meetings and phone calls. The Menendez indictment includes multiple allegations of meetings (including with co-defendant Wael Hana and an Egyptian official) and phone calls (including one allegedly meant to pressure another official about a New Jersey prosecution). Clandestine meetings and phone calls are still powerful evidence, even if by themselves, they can no longer be called “official acts.”
Clandestine meetings and phone calls are still powerful evidence, even if by themselves, they can no longer be called “official acts.”
Second: The McDonnell ruling makes it clear that the government doesn’t have to prove a specific official action or decision by Menendez actually happened. The government only has to prove that Menendez agreed to take official action on some cause. But not even that agreement has to be explicit. For example, prosecutors won’t have to prove that Menendez specified how he was planning to perform his end of the bargain. In fact, Menendez can be convicted even if he really had no intent to perform the official act, so long as he agreed to do so.
In other words, the government doesn’t really have to prove a true “quid pro quo” (this for that). It just has to prove a “quid” (for example, gold bars) and an agreement to “quo” (do something official in exchange).
Even worse for Menendez, prosecutors don’t even need to identify a particular official act. According to the federal appeals court for this district, prosecutors only need to identify the official matter that he sought to influence.
In fact, one defendant in a recent federal corruption case tried to argue that McDonnell required proof that the defendant agreed “to exchange a specific quid for a specific, identified quo.” The New Jersey district court disagreed and cited an earlier court ruling that found that proving quid pro quo requires evidence of a “course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.”
Guess who the defendant was who argued that "a specific quid for a specific, identified quo" had to be proved? Robert Menendez. Yes, the same one.
If McDonnell is an impediment to federal prosecutors, it’s only in the close-call cases.
Now it’s true that Menendez’s case ended in a deadlocked jury and a mistrial. After that, the trial court dismissed several of the charges against him, and the DOJ dismissed the case in its entirety. That’s a defense win by any measure — even though the senator was never actually acquitted by a jury. That’s how hard it is to win in federal court. Menendez was the recipient of a statistical miracle; it might be another partial cause of his optimism.
If McDonnell is an impediment to federal prosecutors, it’s only in the close-call cases. And even then, it’s hardly a barrier to conviction. If Menendez read the briefings and opinions in his own (since-dismissed) case, he knows this more than most.