A federal judge has dashed the hopes of Sen. Bob Menendez, D-New Jersey, that his indictment on corruption charges would be thrown out based on the U.S. Supreme Court’s decision in McDonnell v. United States.
Menendez and co-defendant Salomon Melgen asked for acquittal, claiming that the “stream of benefits” theory of corruption that is the underpinning of the case against them was nullified by the Supreme Court’s June 2016 ruling in McDonnell. But U.S. District Judge William Walls said Monday the stream of benefits theory remains viable.
Walls said the governmental actions in Menendez’s case—in which the senator allegedly intervened in matters including a billing dispute involving Melgen’s ophthalmology practice, visa applications for his female friends, Melgen’s port security contract in the Dominican Republic and a U.S. government donation of cargo scanning equipment to that nation—all fell under the definition of “official acts” as refined by the McDonnell court.
“McDonnell merely narrows the definition of an official act, but says nothing about a nexus between the gift and the official act,” Walls said.
Menendez’s lawyers asked Walls to reject the stream of benefits theory, nothing that it has never been endorsed by the Supreme Court. But Walls noted that the theory remains viable under a 2007 decision of the U.S. Court of Appeals for the Third Circuit, United States v. Kemp. The defense motion to dismiss under McDonnell was made in July, but Walls ordered it held until after the prosecution presented its case.
Walls also rejected Menendez’s motion to vacate the count charging him with failing to report gifts from Melgen on his financial disclosure forms. The judge rejected the defense claims that the exclusions did not meet a statutory requirement that they were capable of influencing some decision by the body to which it was addressed.
The judge’s rulings mean Menendez and Melgen must proceed with the remainder of the trial, which started in early September. Last week, the prosecution rested and on Monday the defense presented testimony from Menendez’s son, Robert Menendez Jr., and Melgen’s wife, Flor.
The younger Menendez, like his father, graduated from Rutgers Law School in Newark. He is an associate at Lowenstein Sandler in Roseland. He spoke of the closeness of his father’s relationship with Melgen, but his appearance on the stand was marked by evidentiary arguments between defense lawyers and prosecutors.
“My dad’s a serious guy. He takes the responsibilities of his office very seriously. With Dr. Melgen, he can be himself,” Robert Menendez Jr. said.
Prosecutors objected to admission of a 2006 Menendez campaign ad in which the senator opposes a proposal by a company from the United Arab Emirates to buy a company managing seaports in Newark and Elizabeth. Walls allowed the jury to see that video. Prosecutors also objected to admission of a 2006 article and photo from a Dominican newspaper that interviewed Menendez while he visited Melgen in the Dominican Republic. Walls sustained that objection.
Defense lawyers had their turn to raise objections when Assistant U.S. Attorney Amanda Vaughn asked the senator’s son about his grand jury testimony concerning a 1999 Menendez family vacation in the Dominican Republic.
“You took an oath at the Grand Jury to tell the truth,” Vaughn said, but Jenny Kramer of Norton Rose Fulbright, representing Menendez, loudly objected. But Walls allowed the questioning, saying, “she has the right to confront the witness on an error.”
Vaughn went on to ask the senator’s son how much of the 1999 vacation was spent with the Melgens, and he conceded that only a small portion of the trip was spent with the Melgens.
When Flor Melgen took the stand, lawyers for the two sides battled over information about prominent people connected to the Melgen family. Defense lawyer Kirk Ogrosky asked her about her father, who was once secretary of state of the Dominican Republic, and about her husband’s uncle, who was “drug czar” for the country. The witness and the jury were abruptly removed from the courtroom for this argument, which ended with the jury hearing about those relatives and the jobs they held, but no further details.
Melgen’s wife and the jury were again hustled out of the courtroom a few minutes later, when Ogrosky sought to admit evidence about the amount—$1,000—that Menendez gave the Melgens’ daughter, Melissa, when she got married. Ogrosky wanted the jury hear him ask Melgen’s wife how that gift compared to offerings of other wedding guests. Defense lawyers said Menendez’s gift was among the largest received by the bride, and they argued that the size of the gift was relevant to demonstrate the closeness of the two men’s friendship.
“That undermines the notion that the relationship was one of corruption,” said another of Menendez’s lawyers, Abbe Lowell.
But Monique Abrishami, another assistant U.S. attorney, argued that the amount of the senator’s wedding gift is not relevant, because there was no information about the financial circumstances of the other guests at the wedding.
Walls, rejecting the testimony on the size of the wedding gift, said, “there is ample evidence of the closeness of the relationship. One thousand dollars, for a sitting senator, as far as I’m concerned, is chump change.”