Sen. Menendez Mistrial Has Serious Implications for Future Corruption Cases

Legal experts and federal prosecutors warned that a win for Menendez could essentially legalize public corruption and “pay-to-play politics” at a time when American faith in the political system is at a notable low.

After a court battle lasting nearly two years, the bribery case against Senator Robert Menendez (D-NJ) has been declared a mistrial, when the jury was unable to reach a unanimous decision after nine weeks of testimony and a week of deliberation. Ten of the 12 jury members had reportedly voted to acquit the senator while two other members refused to back away from their view that the senator should be convicted.

Media outlets have thus far treated the mistrial declaration as a “major victory” for the senator, who was facing 18 different corruption charges over allegations that the lavish political donations, free flights, and vacations he received from wealthy ophthalmologist and businessman Salomon Melgen led him to intervene on the doctor’s behalf.

The outcome of the trial has also been heralded as a setback for the Justice Department, which has found itself limited in its ability to combat public corruption in the court system after a recent Supreme Court decision helped to exonerate former Virginia governor Bob McDonnell from a bribery conviction. That decision subsequently led to the dismissal of bribery convictions against three former public officials, including a U.S. congressman. Yet, a mistrial is not nearly as troubling as would be a potential acquittal, which prosecutors warned could essentially legalize the bribery of public officials.

Menendez’s case is notable compared to other recent bribery cases for several reasons. First, Menendez did not report the gifts or free flights he received from Melgen as is required by law. Menendez and his defense – throughout the trial – asserted that this was merely an accidental oversight, not a criminal lie, even though these gifts went unreported after the corruption allegations surfaced.

In addition, the nature of the “gifts” at the center of the Menendez trial is exceptional. In the McDonnell case, the former Virginia governor was accused of having received $175,000 from a businessman and later helping him to promote his product. Menendez, however, received over $1 million in political donations, luxury vacation and flights on Melgen’s private plane — all while lobbying on Melgen’s behalf regarding an $8.9 million Medicare dispute in which Melgen was accused of defrauding the federal program, as well as securing visas for three of Melgen’s “girlfriends” and a Dominican Republic port contract.

It also emerged during the trial that Menendez had likely received the “services” of underage prostitutes as a “gift” while hosted by Melgen in the Dominican Republic. Though the defense called this claim “easily disprovable,” federal prosecutors asserted that they had “specific, corroborated allegations that defendants Menendez and Melgen had sex with underage prostitutes in the Dominican Republic,” and commented on Menendez’s previous pursuit of underage women.

 

Implications of acquittal for future corruption cases

Topping the list of American's fears in 2017 is the fear of government corruption.

Topping the list of American’s fears in 2017 is the fear of government corruption.

Yet, of greatest concern regarding the Menendez case is the precedent it could set. Indeed, legal experts and federal prosecutors had warned weeks ago that a win for Menendez could essentially legalize public corruption and “pay-to-play politics” at a time when the greatest “fear” or concern of 74 percent of Americans is political corruption and American faith in the political system is at a notable low.

The Department of Justice is wary of the precedent even the mistrial in Menendez’s case could set, and they are likely to put the senator on trial again just to avoid the limits this unsatisfactory outcome could potentially place on their already weakened ability to prosecute corruption. Legal experts who spoke to The Washington Post asserted that, if the government chooses to let Menendez go, it would call into question how much legal authority prosecutors have in pursuing corruption cases where payments are not explicitly and directly linked to official acts, and could make prosecutors more wary of bringing public corruption cases to trial.

The Department of Justice, however, has yet to state whether it will seek to take Menendez to trial again. Given that 10 out of 12 jury members reportedly leaned towards acquittal, the government’s decision to bring the case to trial again may not be as likely as experts have suggested.

Also troubling is the fact that Menendez’s defense asserted that the lavish gifts the senator received from Melgen were merely the result of the pair’s “deep and abiding friendship,” which in and of itself “destroys every single one of the charges” against Menendez. If acquitted, a “friendship” loophole could be established in which “friends” of politicians could essentially buy political favors without fear of federal prosecution — a precedent that truly could legalize public corruption, as prosecutors had warned.

Even though Menendez has not been officially acquitted, the mistrial declaration has left him emboldened. Speaking to supporters outside the courthouse, Menendez stated that, “Today is Resurrection Day. Anyone who knows me knows I never seek a fight, but I never shy away from one either.” He ominously added, “For those who were digging my political grave so they could jump into my seat, I know who you are and I won’t forget it,’’ a statement that many interpreted as a barely veiled threat.

Top photo | Sen. Bob Menendez, center, arrives with his children, Alicia Menendez and Robert Menendez Jr., to court in Newark, N.J., Sept. 6, 2017. (AP/Seth Wenig)

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