Trial of Sen. Menendez may not begin until fall of 2016, judge says

NEWARK, N.J. Sen. Robert Menendez’s corruption trial likely won’t begin until the fall of 2016, Judge William Walls told prosecutors and defense attorneys Thursday, scuttling plans to start Oct. 13.

The two sides and the judge will look to set a more precise date at a January status conference.

The decision came after three hours of heated debate over Menendez’s attempts to have the entire 14-count indictment, or portions of it, dismissed. Walls sharply questioned the New Jersey Democrat’s attorneys when they presented their most sweeping argument, involving constitutional protections that shield legislative acts from prosecution.

Walls opened the hearing by handing out a recent New Yorker cartoon showing a lawyer before the Supreme Court with the caption “Whoa, don’t ask constitutional questions you don’t want to know the answers to.”

But Walls also pointedly challenged prosecutors, questioning whether they had shown a direct connection between Menendez’s actions and the bribes he allegedly received.

Menendez and his friend Salomon Melgen, a South Florida eye doctor and major political donor, face federal charges on bribery and other corruption allegations. Prosecutors allege that Menendez used his office to help Melgen in exchange for lavish gifts, vacations, and campaign cash. Menendez and Melgen have both said they are innocent. Neither attended Thursday’s hearing.

Menendez’s lawyers have argued that some of the actions cited in the case, and some evidence, are protected by the Constitution’s speech and debate clause. Presenting those activities and evidence to the grand jury “infected” the entire case, argued Menendez’s lead attorney, Abbe Lowell.

“It’s inundated,” Lowell said, calling for the charges to be dismissed. But Walls hinted that at least some of what Menendez wants dismissed was permissible and that other parts should be argued before the court, not the grand jury.

“We are traveling down a path that is strewn with arguments that have been decided,” Walls said. Later, referring to a piece of testimony that the defense wants excised, Walls said: “You’re not going to win on that issue.”

The arguments elaborated on reams of motions and responses filed over the summer. Menendez and Melgen’s lawyers have filed 15 motions to dismiss either all or parts of the case. Walls seemed perturbed by the amount of paperwork, saying some motions could have been combined and chastising attorneys for overly long briefs.

He urged them to heed a lesson from elementary school English: “Say what you’re going to say and then shut up.”

While the filings have been laden with salacious accusations about affairs and responses to those accusations, the hearing Thursday mostly stuck to legal nuances though Melgen’s attorneys did seem to find some traction while arguing that prosecutors crossed the line by repeatedly bringing up evidence implying that Melgen, now 61, was involved in extramarital affairs with women in their 20s.

“The only reason this was asked was to inflame the passions of the grand jury” and malign Melgen’s character as they considered other charges, argued Melgen attorney Mathew Menchel.

Walls pressed the argument when prosecutors spoke.

Melgen allegedly solicited Menendez’s help to obtain visas for overseas girlfriends. Would the crime be any different if he was helping a relative and not a mistress? Walls asked. “Why all this New York Post-type coverage?”

Defense lawyers, as they have in paper filings, also argued that prosecutors misled the grand jury and that some of Melgen’s donations, given to a super PAC that backs Democratic Senate candidates, couldn’t be part of a bribery scheme because Menendez didn’t control the money.

Of course, a judge’s questions don’t always indicate how he or she will rule, and Walls peppered both sides with aggressive questioning. He zeroed in on prosecutors’ argument that Melgen gave Menendez a “stream of benefits” to win favors as the need arose, rather than giving specific gifts in exchange for specific actions.

“I have problems, as of now, with regard to these various counts,” Walls said, saying he had some of the same concerns as the defense over how vague some of the charges are.

Lead prosecutors Peter Koski pointed to other corruption cases that had been prosecuted on a similar “stream of benefits” theory, including that of former state Sen. Wayne Bryant, a Democrat convicted in 2008.

Walls said he would likely rule by late next week, though he expects the losing side to appeal leading to a domino effect of delays that he said would probably push back the trial until late next year.

Menendez’s attorneys told the judge that their arguments about campaign donations and the speech and debate protections may go all the way to the Supreme Court. Walls agreed that the donation question, which falls under the 2010 “Citizens United ruling that opened the door to a flood of new campaign spending, might reach the Supreme Court.

He dismissed the idea that the speech and debate argument was that complex, saying it trod on well-worn territory that even “a first-year law student” could adjudicate.

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