Federal prosecutors completed presenting their evidence on Oct. 10 at the bribery trial of Democratic Senator Robert Menendez. An FBI agent was the last of more than three dozen witnesses for the prosecution who testified over a month against Menendez, and his co-defendant Salomon Melgen, a Florida eye doctor who was his top political donor.
Menendez has long been eyed by federal prosecutors for engaging in possibly illegal activities, including corruption. The Justice Department contends that the long time US senator illegally accepted campaign donations or bribes from Melgen, including more than $750,000 in campaign contributions. He also has been accused of accepting luxury trips and private jet travel in return for favors in his official senatorial duties. Menendez for his part has always maintained his innocence.
For example, federal prosecutors claim that Menendez illegally helped the doctor get out of a Medicare fraud case, a contract problem with the Dominican Republic and getting three visas approved for Melgen girlfriends. Melgen already has been convicted for healthcare fraud and faces life in federal prison.
However, defense attorneys vigorously argued that the two men have been close for decades and frequently exchanged gifts without breaking any federal laws.
McDonnell Appeal Decision Changes Direction of Menendez Trial
The federal law on bribery also has changed in ways that could assist the defense of both Menendez and Melgen; the US Supreme Court recently dismissed the corruption conviction of former VA Governor Bob McDonnell. It more narrowly defined what ‘official acts’ are required to get a bribery conviction.
The US district judge who is overseeing the Menendez corruption trial that started in September gave some hope to defense attorneys when he openly asked in court if the prosecution had proven its case. The judge noted that the case is essential circumstantial, and he said that he was unaware of any conspiracy case, other than Julius Caesar where the crime was clear cut.
A legal expert noted that the McDonnell decision shows that there must be more at play to prove corruption and bribery than just advocacy. He stated that McDonnell requires the defendant to actually affect the policy itself.
However, another legal expert who teaches at George Washington Law School thinks that the higher standard after the McDonnell appeal will not save Menendez from being convicted. He said that the major difference in the current case is that Menendez did more to try to help his friend than McDonnell did in his case. Rather than just setting up meetings and phone calls, the senator was pushing for outcomes that benefited Melgen.
Prosecutors have alleged that Menendez was actively trying to influence the outcomes of certain decisions. He allegedly was attempting to encourage people to resolve certain issues and questions.
For example, in the Medicare billing issue, jurors have listened to detailed testimony that the senator was lobbying officials in HHS to try to alter the reimbursement policy. Prosecutors insist that the goal of the senator was to assist Melgen. But the defense argues that he was concerned about policy.
Menendez also met with HHS officials at a lower level before he eventually got an audience with the HHS secretary at the time, Kathleen Sebelius.
Climbing the chain of command in this fashion could be the proof the prosecution needs to show that Menendez was trying to find someone who could sign off on an official act that would benefit the eye doctor.
Another big difference in the Menendez case over the McDonnell appeal is that it was reversed because of incorrect jury instructions that were viewed as too broad.
Still, the judge on the Menendez case noted last week that no bureaucrat who has testified yet ever stated that the senator brought up Melgen’s name in the meetings in question.
Parade of Witnesses Over 18 Days
For more than two weeks, federal jurors heard from many well-known witnesses, including ex-US senator Tom Harkin; ex-HHS secretary Kathleen Sebelius; numerous fundraisers and lobbyists; workers who arranged trips for Melgen on private jets; two girlfriends of Melgan, and an FBI agent.
Defense attorneys repeated tried to stress that Menendez either arranged or participated in meetings, but did not use his powers as a sitting senator to benefit Melgen at all. However, prosecutors showed the jurors pictures and provided testimony that illustrated the luxurious lifestyle that the men enjoyed in each other’s company.
Legal experts say that if the defense is able to convince the jury that Menendez is innocent, it will deal a strong blow to DOJ. The agency has not brought charges against a senator since Ted Stevens in 2009.
The USSC’s recent decision regarding McDonnell seems to have created a flood of possible reversals for high profile corruption cases. A federal appeals court last summer vacated a corruption conviction for Sheldon Silver, a former NY state assembly speaker. He had been found guilty for accepting $4 million in exchange for NY state legislative favors. The appeal court found that the jury’s instructions did not comply with the McDonnell decision and were thus in error.
Now that the prosecution has concluded its case, the defense will soon begin to present its witnesses when the court reconvenes later this month.