Next week will mark the beginning of the trial of Robert Menendez. The U.S. senator and former congressman faces federal corruption charges related to gifts he allegedly accepted from a Florida ophthalmologist. As the New Jersey Democrat heads to court, he is hoping for help from an unlikely source: a past target of a corruption probe, former Virginia governor Robert F. McDonnell (R).
Last year, in McDonnell v. United States, the Supreme Court reversed McDonnell’s criminal convictions and dramatically limited the scope of federal corruption law. Post-McDonnell, the government must prove a corrupt public official agreed to perform an “official act” — and “official act” has a very precise and narrow meaning.
The court’s constricted definition of an official act has already claimed some high-profile casualties. For example, in July, the U.S. Court of Appeals for the 2nd Circuit relied on McDonnell when reversing the corruption conviction of Sheldon Silver, former speaker of the New York General Assembly. So will McDonnell save Menendez?
Prosecutors allege that over a number of years Menendez accepted valuable gifts from his co-defendant, Salomon Melgen. These included multiple trips on Melgen’s private jet, stays at a luxury villa in the Dominican Republic, and hundreds of thousands of dollars in contributions to various campaigns and a legal defense fund.
In exchange, Menendez allegedly interceded with the State Department in connection with a contract Melgen had to provide port security in the Dominican Republic. He advocated for Melgen before the Department of Health and Human Services in a multimillion-dollar Medicare billing dispute. And Menendez and his staff allegedly worked with the State Department to help secure visas to allow three foreign girlfriends of Melgen to come to the United States.
To prove corruption, prosecutors will have to prove a quid pro quo, a link between Melgen’s gifts and Menendez’s actions. But Menendez argues that, no matter what his motivation, his efforts on Melgen’s behalf did not amount to “official acts” and so could not support a conviction under McDonnell.
Relying on the federal bribery statute, the court in McDonnell defined an official act as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official.”
A “question, matter, cause, suit, proceeding or controversy,” the court held, connotes a “formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” The public official must agree to decide or act on the matter in question — in other words, must take some steps to resolve the matter or move it forward.
McDonnell had made some phone calls, arranged meetings with other Virginia officials and hosted an event at the governor’s mansion on behalf of his benefactor. The court held these actions, standing alone, did not amount to official acts. Such political courtesies, the court concluded, could not support a corruption conviction.
Since he was first indicted, Menendez has argued that he, too, did not perform official acts. He claims he was simply attending meetings and gathering information on behalf of an old friend. Like McDonnell, he says, he did not actually dole out any government benefits or decide any disputed questions.
But Menendez’s alleged actions were much more substantial than McDonnell’s. Menendez did not simply arrange meetings for Melgen or make introductions for him. Menendez himself attended meetings with HHS and State Department officials and allegedly lobbied hard for Melgen’s interests.
In court papers, Menendez also argues that, because the identified matters were never pending before him and he did not have the power to decide them, his advocacy cannot amount to official acts. Unfortunately for Menendez, the Supreme Court anticipated this issue. The court held an official act does not have to relate to a matter that the defendant himself has the power to resolve. It is enough if the defendant tries to influence someone else with that power.
In the Menendez case, because the matters were pending before various executive branch officials, their resolution of those matters would be considered official acts. If, as the indictment alleges, Menendez tried to influence those officials on those issues in Melgen’s favor, under McDonnell such efforts can be official acts by Menendez himself.
Menendez has repeatedly sought to have his trial judge dismiss the charges based on McDonnell, and the judge has repeatedly declined to do so. That’s the right call; the court should wait to see the evidence before making any such ruling. The precise details concerning any actions by Menendez are going to be critical and will come out only at trial.
It remains to be seen how the government’s evidence will come in, and the defense certainly has other cards to play. But if the allegations of the indictment hold up, it’s unlikely that Bob McDonnell’s case will mean Bob Menendez goes free.