Despite being covered by local and national news organizations daily, this trial has flown under the radar in a Washington awash with news. But after a big week where an Obama Cabinet member testified, we called up Thomas Moriarty, the federal courts reporter for N.J. Advance Media, to get caught up. Our conversation, spread out over two different days, has been edited for length and clarity.
THE FIX: So, what's the headline or headline question from the trial so far?
Moriarty: The headline question is really: Where is the crime exactly? If there is a crime, where is it?
That's the defense's whole position, that there is no crime here and there is no quid pro quo. That these guys were friends. The gifts were just that, they were gifts. And Menendez's meetings were just legitimate legislative activity about policies he was concerned about.
Kathleen Sebelius, secretary of Health and Human Services during the Obama administration, testified this week. What'd she say?
Moriarty: She said that [then-Senate Majority Leader Harry] Reid's request to have her meet with Menendez was “unusual.” She would meet with members of Congress all the time, but not at the request of a third party member of Congress.
She said Menendez never raised [doctor and donor Salomon] Melgen's name in the meeting she had in August 2012 with Menendez about a Medicare billing policy. But one of her staffers testified they understood there was one physician being affected by this policy, and that position was this doctor that Menendez was close to.
Why is Sebelius's testimony that Menendez tried to meet with her so important?
Moriarty: Well, she's the only Cabinet official named in this indictment. And Menendez's meeting with Sebelius came only after he had climbed the ranks of HHS trying to find some sort of help with a policy dispute, allegedly on Melgen's behalf. The government argues he was doing it in return for bribes.
It seems like what prosecution needs to show is that Menendez was relentless and trying to use his power as a senator to arrange this meeting. Most people can't get an audience with the secretary of Health and Human Services if their friends have a billing dispute.
How did the defense respond to that?
Moriarty: The broader defense is really two-pronged: That Menendez and Melgen were friends, which means the gifts Melgen gave Menendez were just gifts; acts of generosity between friends.
Their other argument is that Menendez's meeting with Sebelius was part of normal, legitimate activity. This is something a senator does. He consults with Cabinet officials.
The Medicare dispute isn't the only action the government accuses Menendez of taking on Melgen's behalf, right?
Moriarty: Another portion of the criminal allegation is Menendez intervened with the State Department to try to get them to force the Dominican Republic to honor [a] port security contract that was held by a company Dr. Melgen bought a 50 percent stake in.
On the same day that Melgen agreed to make this contribution of $60,000 through himself and family members to Menendez-affiliated campaign funds, Menendez reached out to the State Department asking for a [related] meeting with a top official. And the timing of that is an element that the government is focusing on. That, they say, shows a quid pro quo. The same day this donation happens, Menendez takes action on behalf of Melgen.
What other unanswered questions are still out there?
Moriarty: A bunch. I broke it down in my notes into four unresolved questions.
The first question is: Is there a smoking gun the jury hasn't been shown? So far the government has produced what the judge even said this week is “basically a circumstantial case” that relates to the timing of Melgen's gifts and contributions to Menendez and the timing of when Menendez then ostensibly took an action that would benefit Melgen. But there is not an email that's been introduced that says “Okay, senator. I'm going to trade you this private plane flight for you intervening in a port contract.”
The second is Harry M. Reid. He is a key figure in the allegations. He was the Senate majority leader. He brokered this meeting with Menendez and Sebelius. He also attended. But he hasn't been called to testify. We heard from one of his staffers the other day but The Post reported the government isn't planning to call him. If he doesn't get called, to what extent do jurors feel like they have to connect the dots on their own?
Also, is either Menendez or Melgen going to testify and take the stand in their own defense? It's a question nobody can answer except them.
The other question is the Supreme Court decision in the Robert McDonnell case regarding the bribery conviction of the former governor of Virginia, which basically narrowed the definition of official acts [of wrongdoing].
There's still the pending motion by the defense to dismiss all the charges against Menendez based on the McDonnell decision. The judge has postponed the ruling on his motion until after he hears everything from the defense.
So the judge can dismiss the case before the jury even hears it. That is a possibility here, and that is a wild card.