Feds: Menendez judge could ‘legalize pay to play politics’

The judge in U.S. Sen. Bob Menendez’s corruption trial could rule on Monday to dismiss the bulk of the indictment against the New Jersey Democrat, a decision that prosecutors say could “broadly legalize pay-to-play politics.” (Photo By U.S. Senate, Public Domain)

NEWARK, N.J. — The judge in U.S. Sen. Bob Menendez’s corruption trial could rule on Monday to dismiss the bulk of the indictment against the New Jersey Democrat, a decision that prosecutors say could “broadly legalize pay-to-play politics.”

After hearing six weeks of testimony and viewing dozens of emails and documents that prosecutors allege show Menendez schemed to help a wealthy friend in exchange for free plane rides and luxury hotel stays, jurors may never get to deliberate those points.

That will depend on how U.S. District Judge William Walls decides on arguments by lawyers for Menendez and his longtime friend, Florida ophthalmologist Salomon Melgen, to dismiss the case. Lawyers on both sides are set to present additional arguments Monday morning before Walls decides.

At issue is a 2016 U.S. Supreme Court ruling that overturned the conviction of former Republican Virginia Gov. Bob McDonnell and narrowed the definition of bribery. In recent months, it has led judges to throw out bribery convictions for three former public officials, including a U.S. congressman.

After the prosecution rested its case and with jurors out of the room, Walls surprised some last week when he appeared to put to rest what was expected to be the trial’s central issue: whether Menendez’s meeting and interactions with government officials could be considered “official acts” under McDonnell’s new, narrower definition of bribery.

Instead, he focused on the so-called “stream of benefits” theory, which in the past has held that a bribe doesn’t have to be made with the intent to prompt a specific official action.

If the judge rules the theory can’t be applied to this case, it could cut out the heart of the 18-count indictment: the 12 bribery counts, six against each man; the top count, conspiracy to engage in honest services wire fraud, and possibly three others.

The judge indicated last week he would leave intact one count of making false statements against Menendez for not declaring Melgen’s gifts on his Senate disclosure forms.

The indictment charges Menendez with accepted the flights on Melgen’s private plane and other gifts over a seven-year period in exchange for pressuring executive branch officials on behalf of Melgen in an $8.9 million Medicare billing dispute and a contested contract for port screening equipment in the Dominican Republic.

Defence attorneys for Menendez and Melgen contend language in the McDonnell decision requires that an alleged bribe be given in exchange for an official taking an action — or agreeing to — on a specifically identified “question, cause, suit, proceeding or controversy.”

Menendez attorney Abbe Lowell argued the prosecution used a “mix and match” strategy to pair up Melgen’s gifts with actions Menendez took over the years, without establishing direct connections.

“They are one, two years apart,” he said. “Sometimes the bribe is allegedly for something three months before.”

In response, Justice Department attorney Peter Koski argued the Medicare dispute and the port contract were the “identified questions” and that a public official doesn’t have to specify how he will perform his end of the bargain.

In a brief filed Saturday, prosecutors cited cases since the McDonnell ruling in which, they wrote, federal appeals courts have left the stream of benefits theory undisturbed.

Invalidating it, they wrote, would “jettison the vast majority of bribery prosecutions, and broadly legalize pay-to-play politics.”