By DAVID PORTER
NEWARK, N.J. (AP) — The overturning of another politician’s corruption conviction has added intrigue to the bribery trial of Democratic U.S. Sen. Bob Menendez of New Jersey.
On Tuesday, a New York federal appeals court invalidated the 2015 conviction of Republican former state Senate leader Dean Skelos. The same court reversed Democratic former New York state Assembly Speaker Sheldon Silver’s corruption conviction two months ago.
Both times, the court cited a 2016 U.S. Supreme Court ruling in the case of Republican former Virginia Gov. Bob McDonnell that narrowed the definition of a corrupt act by a public official.
Menendez has cited the McDonnell ruling to argue his bribery and fraud indictment should be dismissed. His trial is in its fourth week and is expected to last at least until late October.
DIFFERENT CASES, COMMON THREADS
McDonnell was convicted in 2014 of accepting more than $165,000 in gifts and loans from a wealthy businessman in exchange for promoting a dietary supplement by hosting a product launch and attending other events.
Silver was convicted in 2015 of collecting $4 million in kickbacks from a cancer researcher and real estate developers in return for using his political influence to help them.
A jury convicted Skelos, also in 2015, of strong-arming three companies into giving his son about $300,000 through consulting work, a no-show job and a payment of $20,000. The son, Adam Skelos, also was convicted.
Menendez is charged with trading his political influence for bribes in the form of luxury hotel stays and flights on a private jet provided by Florida eye doctor Salomon Melgen, a longtime friend.
WHAT THE SUPREME COURT SAID
In reversing McDonnell’s conviction, a unanimous U.S. Supreme Court found that instructions to the trial jury about what defines a public official’s “official acts” were so broad that they could include almost any action an official might take while in office.
“Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of official act,” Chief Justice John Roberts wrote.
In reversing the convictions of Silver and Skelos, the 2nd U.S. Circuit Court of Appeals in New York wrote that the jury instructions were flawed.
WHAT MENENDEZ SAYS
In a motion to dismiss his indictment in July, Menendez’s attorneys argued his meetings and interactions with executive branch officials can’t be considered official acts under the McDonnell ruling.
They also argued that the McDonnell ruling requires that the government prove a public official agreed to perform an official act at the time of the alleged bribery agreement, something they say never occurred between Menendez and Melgen.
The McDonnell ruling eliminates the so-called stream of benefits concept, they wrote, in which the action in exchange for the alleged bribe is “not yet identified at the time of the allegedly corrupt exchange, that will emerge in the future as ‘opportunities’ arise.”
WHAT THE GOVERNMENT SAYS
In a response to Menendez’s motion, prosecutors argued that the McDonnell ruling didn’t “invalidate, or even weaken, the well-established stream of benefits theory of bribery.”
They wrote that the McDonnell ruling did hold that exerting pressure on another public official to perform an official act qualifies as an official act under bribery statutes. That is what the indictment alleges Menendez did when he met with or contacted officials in the executive branch, purportedly to lobby on behalf of Melgen’s business interests.
“Menendez is taking the position that it wasn’t in his ability to take an official act to meet with executive branch officials, but the prosecution has done a great job of saying, ‘That’s not what McDonnell says,'” said Mala Ahuja Harker, a former assistant U.S. attorney in New Jersey. “If you are acting outside your sphere of official capacity but pressuring somebody, that has to be illegal, and can be, under McDonnell.”
WHEN WILL A DECISION BE MADE?
U.S. District Judge William Walls said he would wait until after the prosecution had finished presenting its case to issue a ruling. That could come in two or three weeks.
At that point, defense attorneys are expected file a Rule 29 motion, allowed in any criminal trial, in which they will argue that the prosecution failed to present enough evidence to prove its case. Dismissals at that point in a trial can happen but are rare.
“It’s a possibility depending on how the evidence comes in,” said former assistant U.S. attorney Lee Vartan. “If it’s similar to the fact pattern in McDonnell, then it’s a real possibility. If (Menendez) was haranguing people and threatening to hold hearings, then I don’t think it’s going to succeed.”
During trial testimony Tuesday, a State Department official said another official told him Menendez threatened to call a Senate hearing if there wasn’t a solution to a dispute involving a cargo screening contract for a company in the Dominican Republic partially owned by Melgen.
Menendez attorney Abbe Lowell declined to comment on the Skelos ruling Tuesday.