U.S. Sen. Robert Menendez, D-New Jersey, has filed a new motion to dismiss corruption charges against him, finding hope in last week’s appellate ruling reversing the bribery conviction of former New York Assembly Speaker Sheldon Silver.
The “stream of benefits” theory of quid pro quo bribery advanced in Menendez’s indictment cannot be reconciled with the Supreme Court’s June 2016 decision vacating the bribery conviction of former Virginia Gov. Robert McDonnell, Menendez said in his motion Tuesday. And the same sort of broad definition of official acts in Menendez’s indictment was rejected by the U.S. Court of Appeals for the Second Circuit on July 13 in the Silver decision, which was based on a reclassification of that term in McDonnell, the senator said in his filing.
Menendez said in his motion that the court in McDonnell requires the government to prove that he agreed to perform a specific, official act in exchange for an alleged quid pro quo. His indictment, which alleges that he advocated with executive branch officials on behalf of Florida eye doctor Salomon Melgen over a seven-year period on a Medicare payment dispute, visa applications for Melgen’s friends, and a port security contract with the Dominican Republic, in exchange for some unspecified quid pro quo, does not fit that definition, Menendez says.
In court papers, Menendez cited the Second Circuit’s finding that Silver was convicted based on the government’s treatment of “any action taken or to be taken under color of official authority” as an official act. The broad definition of official acts by the government in Silver “is the same theory that animates the superseding indictment in this case, with its 153 paragraphs that treat everything Senator Menendez did as ‘exercises of Menendez’s official authority’ in which ‘Menendez used the prestige, authority and influence of his status as a United States senator,’” the motion said. “If the government intends to proceed with this prosecution, it should do so by securing a new indictment, one that pairs the ‘official acts’ charged down to only those that comport with McDonnell.”
The Second Circuit found that jury instructions in the Silver case did not comport with the narrower definition of bribery in the McDonnell case. The ruling upended a conviction on charges that Silver capitalized on his position to engage in two separate quid pro quo schemes that netted him roughly $4 million.
Prosecutors said Silver, who was of counsel to plaintiffs firm Weitz & Luxenberg, received $3 million in referral fees for asbestos patients referred by physician Robert Taub. In return he was alleged to have directed state funding to Taub’s medical research. In addition, prosecutors accused Silver of arranging to have two real estate developers send their business to a law firm, Goldberg & Iryani, which, in turn give Silver an $835,000 cut of its fees. Silver, in turn, supported legislation that benefited the developers.
The Second Circuit said the jury instruction given by the trial judge in the Silver case provided a faulty definition of official action.
The appeals cited the Supreme Court’s findings in McDonnell, which established a two-part test for deciding if something is an official act. First, the court said the matter or proceeding must involve a formal exercise of government power that is similar in nature to a lawsuit before a court, a determination before an agency or a hearing before a committee. The justices also said the matter must be something that is specific that is pending before a public official. Second, the court said, to qualify as an official act, the public official must make a decision or take an action on that matter or question, or agree to do so. Such an action may include using an official position to exert pressure on another official to perform an official act, or to advise another official, knowing that such advice will form the basis of an official act.
Menendez is charged with conspiracy to commit bribery, honest services fraud, violation of the Travel Act, bribery, honest services fraud and making false statements. Menendez, who was indicted in April 2015, moved to dismiss later that year but the motions were denied in September 2015, before the McDonnell decision was issued. He previously moved to dismiss the indictment on the grounds that he was exempt from prosecution under the speech or debate clause of the Constitution, which holds that only Congress may take action against one of his members for misconduct, but the Third Circuit affirmed dismissal of that motion in August 2016.
The latest filing comes less than two months before the scheduled Sept. 6 starting date for the senator’s trial.
Menendez’s lead attorney, Abbe Lowell of Norton Rose Fulbright in Washington, did not return a call about the motion. The Department of Justice also did not respond to a request for comment on the motion.