Divergence in Big-Name Political Bribery Cases

(CN) — Politicians battling corruption charges reached differing appellate results Friday with the Third Circuit advancing the prosecution of New Jersey Sen. Bob Menendez and the Fourth Circuit putting a pin in Virginia Gov. Bob McDonnell's retrial.

While Menendez stands accused of accepting bribes from ophthalmologist Salomon Melgen, the government is struggling to show that the supporter who gave McDonnell $175,000 in loans and gifts received any illegal benefit in return. In addition to their first names, avocations and legal troubles, the indicted politicians also share an age: 62.

McDonnell was initially convicted but the Supreme Court set the stage for the Republican's retrial with a unanimous reversal last month.

On Friday, a Richmond, Va.-based federal appeals court gave the prosecution and the defense until Aug. 29 to lay out proposed next steps.

They must file a proposed briefing schedule or joint status report by that time.

Menendez meanwhile faces a 22-count indictment that accuses him of turning legislative tricks in exchange for $800,000 in cash and favors — including trips on a private jet, a stay in a five-star Parisian hotel and access to an exclusive Dominican resort.

Florida-based Melgen apparently needed help with an $8.9 million enforcement action from the Centers for Medicare and Medicaid Services, and prosecutors say Menendez also encouraged the State Department to intervene in the doctor's multimillion dollar contract dispute with the Dominican Republic.

The indictment additionally accuses the Democrat of using his position as a U.S. senator "to influence the visa proceedings of [Melgen's] foreign girlfriends."

In his bid to upend the charges, Mendendez said the grand jury should have been instructed to disregard materials protected under the speech or debate clause, which shields elected officials against "evidence of a legislative act" in a prosecution.

U.S. District Judge William Walls found that Menendez had no such immunity, however, and upheld the indictment in September.

A three-judge panel with the Third Circuit unanimously agreed on Friday.

"In practice, the speech or debate privilege affords protection from indictment only for 'legislative activity,'" U.S. Circuit Judge Thomas Ambro wrote for the Philadelphia-based court. "Legislative acts have 'consistently been defined as [those] generally done in Congress in relation to the business before it.'"

Menendez cannot invoke it to cover "every official act performed by a member of Congress," the 36-page opinion continues.

"Rather, it protects only acts that are 'an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House," Ambro added.

The Third Circuit's ruling offers no indication, however, of how the Supreme Court's McDonnell precedent could affect Menendez's prosecution.

McDonnell never denied that a dietary supplement company Star Scientific showered him with gifts, including a Rolex for him, a Bergdoff Goodman shopping spree for his wife, and wedding gifts for his daughters. But the high court found that McDonnell "distasteful" conduct did not amount to a federal crime because prosecutors did not prove any "official act" toward his benefactors.

The U.S. Attorney's Office for the Eastern District of Virginia did not immediately respond to an email asking them whether they intend to retry the case.

Campaign-finance experts have speculated the McDonnell precedent could give Menendez's case a boost, but Menendez's attorney did not confirm such a strategy by press time.

U.S. Circuit Judges Kent Jordan and Anthony Scirica joined the opinion.

Menendez insists that he was concerned with broader issues of policy, but the circuit was not impressed with his "selective reading of the materials in the record" at this stage.

"The evidence in favor of Senator Menendez will no doubt channel forcefully his position at trial, where the burden will be on the government to convince jurors to find in its favor beyond a reasonable doubt," Ambro wrote. "But at this stage the burden is on Senator Menendez."

Department of Justice spokesman Peter Carr declined to comment.

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