When the corruption trial of U.S. Sen. Robert Menendez began in early September, the federal bribery charges threatened to end his career and land him in jail.
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After hearing testimony from Senate staffers, government bureaucrats, private jet pilots, models and former senators and Cabinet secretaries, Judge William Walls indicated he may dismiss most of the 18 charges against Menendez.
Prosecutors were unable to produce a smoking gun demonstrating that New Jersey’s senior senator explicitly promised to do something for his co-defendant, Florida eye doctor Salomon Melgen, in exchange for a gift or campaign contribution.
Still, Walls said he would not dismiss lesser charges the Democrat filed false information by not listing private jet flights and hotel stays provided by Melgen on his U.S. Senate financial disclosure forms.
The latest developments are no doubt good news for Menendez, whose trial reconvenes Monday in Newark. But not necessarily for his party: If Menendez prevails in court, Democrats would face the real possibility that the powerful senator will be hell-bent on running for re-election next year, despite having gone through an embarrassing and politically damaging trial.
Democrats already face a difficult Senate map in 2018, and Menendez seeking re-election could put what should be an ultra-safe seat in play.
A Republican hasn’t won a U.S. Senate election in New Jersey since 1972.
If convicted, Menendez could face expulsion from the Senate, where Republicans hold a 52-48 majority. But expulsion would take a two-thirds majority. That vote will be tough to achieve, given that Democrats are aware that if Menendez is expelled, Republican Gov. Christie will get to appoint a presumably Republican successor — at least until he leaves office on Jan. 16.
It would likely be harder to expel Menendez if he’s only convicted on the most minor charge of his indictment.
Menendez has refused to say whether he’d resign if convicted.
The prosecution’s theory is that Melgen plied Menendez with gifts, including a luxurious Paris hotel stay paid for with the doctor’s American Express points, private jet flights and more than $750,000 in political contributions, and that Menendez was available to help him “as opportunities arose.”
But prosecutors have relied on connecting the timing of Melgen’s gifts to Menendez’s actions to show a quid pro quo.
For instance, they noted that Menendez requested a meeting with a high-ranking State Department official to allegedly advocate for Melgen’s Dominican Republic port security contract on the same day Melgen donated $60,000 to help Menendez’s 2012 re-election and to a legal fund to fight a recall effort against him. Other actions Menendez allegedly did to help Melgen, however, took place months after Melgen gave him a gift.
Joe Hayden, a New Jersey defense attorney and politically active Democrat, said one problem prosecutors have is they don’t have a witness who can tie everything together.
Instead, prosecutors have relied on the Alan Mohl, the FBI agent who investigated the Menendez case, as a vehicle to introduce emails and other documents they say show Menendez was doing more than helping a friend. They called him to the witness stand four times over six weeks.
“The prosecution put in a circumstantial case attempting to connect the dots, but they did it without a narrator who would say he or she was there and this is what happened,” Hayden said. “For example, in the Bridgegate case, there was a narrator and his name was (David) Wildstein. Here, what the prosecution was doing was trying to connect the dots without an alleged co-conspirator.”
The prosecution already had a difficult case to argue, said Michael Weinstein, a former Department of Justice trial attorney who now chairs the white collar litigation and government investigations practice at the firm Cole Schotz.
On Wednesday, Walls said the 2016 U.S. Supreme Court decision overturning the corruption conviction of former Virginia Gov. Bob McDonnell may have invalidated the foundation of the prosecution’s case — what’s known as the “stream of benefits” theory.
If Walls rules the “stream of benefits” theory was invalidated, he could decide to throw out most of the charges against Menendez before they reach the jury.
“I think clearly if the judge throws out the stream of benefits arguments, it really guts the government’s case. For me, it’s almost a death blow,” Weinstein said. “I think the government is reeling right now.”
Even if Walls decides to keep the charges intact, he may decide to give narrowly-tailored instructions to the jury explaining that to find Menendez and Melgen guilty of bribery, they’ll have to find that Melgen’s gifts were made directly to influence specific actions — not, as prosecutors charge, “as opportunities arose.”
“If the judge allows the entire case to go before the jury, the next major battle between the prosecution and the defense will be over the instructions,” said Robert Mintz, a former federal prosecutor. “What exactly does the jury have to find in order to convict here?”
Walls made it clear Wednesday that the jury will get to decide whether Menendez is guilty of willfully concealing the gifts he received from Melgen by not disclosing them on Senate disclosure forms. Though it’s the least serious of the charges, it is a felony.
Ross K. Baker, a professor of political science at Rutgers University and an expert on the U.S. Senate, said he imagines Menendez running for re-election even if he’s convicted of that charge. Even if Menendez is acquitted on all charges, the trial will still have likely damaged him politically.
“It’s a little bit like walking through a swamp and taking a shower. All the muck doesn’t get washed off, even if you’re acquitted,” Baker said.
“I think the Democrats strategically would believe that all things being equal, a Democrat will win statewide in New Jersey,” Baker said. “But there’s always that chance that the Republicans could come up with some squeaky clean candidate, probably a rich person, who might say ‘I’m completely untarnished by any kind of ethical questions. No one’s ever raised any issues about me.”
Democratic State Chairman John Currie said that if Menendez is acquitted, he likely would win the backing of state Democrats for re-election.
“Senator Menendez has always had tremendous support from the Democratic Party, and I believe if he’s acquitted, he still would have support. But I would have to say now, in my opinion, he has tremendous support,” Currie said in a phone interview.
Asked if Menendez would maintain that support if he was convicted of filing false reports, Currie said, “I think it’s a possibility. I think it would depend on what that is, and we would want to have some discussions with the senator. But listen, Senator Menendez has done an outstanding job not only for New Jersey but for this country.”