Menendez indictment raises challenges for prosecution and defense

Menendez indictment raises challenges for prosecution and defense
U.S. Sen. Robert Menendez, with attorney Abbe Lowell, speaks outside federal court in Newark, N.J., after his arraignment.He will have difficulty fighting the “false statements” felony charge over failing to report gifts. (Kena Betancur / Getty Images)

The 68-page indictment of New Jersey Sen. Robert Menendez is chock-full of allegations of a corrupt bargain in which a Florida eye doctor gave the lawmaker a small fortune in free vacations and campaign contributions in return for high-level intervention on behalf of the doctor's businesses and multiple girlfriends.

But defense lawyers and former prosecutors, while impressed with the scope of the charges and newly revealed details, also see some potential holes in the case and hurdles awaiting prosecutors.

Unlike the successful and somewhat similar prosecution of former Virginia Gov. Bob McDonnell, there is as yet no insider identified who will testify that the gifts were a quid pro quo for the favors.

In the McDonnell trial, the government's star witness was Jonnie Williams, the entrepreneur who showered the governor's family with gifts in return for help with his health supplements business.

But in the New Jersey Democrat's case, the doctor, Salomon Melgen, is also a defendant and has refused to cooperate. He and Menendez, who are longtime friends, both pleaded not guilty Thursday in federal court in Newark, N.J.

Also tricky are the charges that the $750,000 in campaign contributions were part of a bribery scheme. Such claims are highly unusual because, as former federal prosecutor Melanie Sloan said, "it's frankly an indictment of our whole system." Proving that legal campaign contributions are directly linked to illegal influence-peddling has often proved challenging for government prosecutors.

The government must also contend with Menendez's assertion that all the gifts and favors are explained by their 22-year-friendship. "The senator and I have become like brothers," Melgen said two years ago in an interview with Bloomberg News.

"One of the key things the government has a burden to prove is that there was a link — that it wasn't just because they were friends, but that [Menendez] did certain things because of donations and gifts," said Amy Richardson, a white-collar defense lawyer in Washington.

Richardson said that burden is harder now for the government than it was in 2008, the last time the Justice Department indicted a senator, because of a 2010 Supreme Court decision in the Enron energy scandal that raised the level of proof needed for a conviction of "honest services fraud," one of the charges against Menendez, along with bribery and conspiracy.

The Enron decision required prosecutors to prove that bribery or kickbacks had taken place instead of simply showing that an official had defrauded voters of their "honest services."

Menendez has also raised a potentially powerful constitutional issue, claiming that its provisions protecting a senator's "speech and debate" bar prosecution for official acts such as the interventions on Melgen's behalf.

But such a claim may not rebuff many of the counts against him, legal experts said. Most of what Menendez is alleged to have done, such as holding meetings, sending emails and pressuring officials, is not protected under Supreme Court precedents, they said.

Edward Loya, a former Justice Department public corruption prosecutor, called the indictment "a very strong, albeit circumstantial case for the government."

He said potential jurors from poorer precincts may find it hard to swallow Menendez's claim that nearly $1million in gifts — including lavish vacations in a fully staffed Caribbean villa, free use of corporate jets and two $300,000 checks written to a Democratic "super PAC" — were just expressions of friendship.

"These are not the types of things that people usually get to enjoy through their relationships," Loya said.

The indictment portrays Menendez, whose parents emigrated from Cuba, as consumed with helping Melgen, enlisting the Senate majority leader and a Cabinet member on behalf of the doctor's businesses and hounding visa officials and ambassadors for visas for Melgen's girlfriends.

Menendez's interventions that furthered Melgen's romantic relationships with young Brazilian models could also color the jury's view of the legislator, lawyers said. And these actions hardly hold up as "constituent service" — sometimes used as a defense — since Melgen is from Florida.

The battle shaping up between one of Washington's feistiest politicians and a beleaguered Justice Department Public Integrity Section desperate to win a high-profile federal conviction could come down to one small but relatively easily proved charge.

The last of 22 counts against the senator is making "false statements," namely the annual financial disclosure statements required by law. For five years Menendez failed to report any of Melgen's gifts, a felony that by itself could lead to jail time.

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