A Senator Gets Indicted

Today, New Jersey Senator Bob Menendez was indicted, along with his wife and three New Jersey businessmen. DOJ alleges that he agreed to take bribes in exchange for using his official position to benefit the three men, as well as the government of Egypt. The Senator and his wife allegedly accepted hundreds of thousands of dollars in bribes, which came in the form of gold bars, cash, and a luxury convertible. Arraignments are set for next Wednesday.

Like all defendants, the Senator and his co-defendants are presumed innocent until proven guilty. They’ve said they intend to fight the charges. Menendez is required, under Senate rules, to step down from his position as Chairman of the Senate Foreign Relations Committee. NBC is reporting that he is expected to do so. He is up for reelection in 2024.

The 39-page “speaking” indictment charges Senator Menendez and his co-defendants with a sprawling conspiracy. There are detailed allegations that he used his leverage as chair of the Committee to try and pressure a Department of Agriculture official for the benefit of his co-conspirators and that he attempted to intervene in two federal criminal cases, where he pressured federal officials to slow the pace of, or drop, cases.

The charges are:

• Conspiracy to commit bribery under 18 USC 201, which prohibits the giving or accepting of anything of value to or by a public official, if the thing is given "with intent to influence" an official act, or if it is received by the official "in return for being influenced."

• Conspiracy to commit honest services wire fraud under 18 USC 1346 and 1343, which prohibit a “scheme or artifice to defraud” another of the intangible right of honest services owing to them from an elected official. The concept of honest services, which prosecutors attempted to use broadly after the law was enacted in 1988, has been limited to bribes and kickbacks.

• Conspiracy to Commit Extortion Under Color of Official Right, 18 USC 1951, is know as the Hobbs Act. Although it was enacted to combat racketeering in labor-management disputes, it is also used for public corruption, when an elected official engages in extortion through misuse of his office.

The full indictment can be found here. The government says the conspiracy involved the Senator advising Egyptian officials, through his co-conspirators, that he would approve or remove holds on foreign military financing and sales of military equipment to Egypt, that he had the ability to engage on because of his leadership role on the Senate Foreign Relations Committee. His actions were designed to permit a business owned by one of the co-defendants to obtain a profitable monopoly on approval of Halal meat.

The indictment explains, “Because the monopoly resulted in increased costs for U.S. meat suppliers, in or about April and May 2019, the USDA contacted the Government of Egypt and sought reconsideration of its grant of monopoly rights to IS EG Halal.  After being briefed on the USDA’s objections to IS EG Halal’s monopoly by [defendant] HANA and [defendant] NADINE MENENDEZ, on May 23, 2019, MENENDEZ called a high-level USDA official (“Official-1”) and insisted that the USDA stop opposing IS EG Halal’s status as sole halal certifier.  When Official-1 attempted to explain why the monopoly was detrimental to U.S. interests, MENENDEZ reiterated his demand that the USDA stop interfering with IS EG Halal’s monopoly.  Official-1 did not accede to MENENDEZ’s demand, but IS EG Halal nevertheless kept its monopoly.”

Some of the specific allegations include:

• “Menendez agreed and sought to pressure a senior official at the U.S. Department of Agriculture in an effort to protect a business monopoly granted to his co-defendant…by Egypt.”

• Menendez tried to “disrupt a criminal case undertaken by the New Jersey Attorney General’s Office related to associates of [co-defendant] Uribe.”

• Menendez tried to “disrupt a federal criminal prosecution brought by the U.S. Attorney’s Office for the District of New Jersey against [co-defendant] Daibes.”

There is some history to take into account: the Senator was indicted on unrelated charges in 2015. Menendez was charged with a bribery scheme to trade political favors for luxury vacations, golf outings, campaign donations and expensive flights. His co-defendant, Salomon Melgen, a Florida eye doctor, had already been convicted in a scheme to defraud Medicare of over $90 million.

Menendez’s position was that there was no bribery involved, that any favors that were done occurred because of a long time and very close friendship between the two. His trial, two years later, resulted in a hung jury. Afterwards, the Judge dismissed seven of the 18 charges in the indictment, and DOJ chose not to retry the remainder. Menendez was never convicted. Politico reported that a juror leaving the federal courthouse in Newark after the mistrial said the jury was split, 10-2, with the majority believing the senator was not guilty on most of the 18 counts he faced.

Our elected officials assume the mantel of the public’s trust when they take office. In cases where they abuse it, they must be held accountable. Using public office for personal financial gain is unacceptable. It does not matter which party the person is a member of. But by the same token, DOJ has some legal hurdles it must clear when it brings a case like this one. DOJ has suffered losses in some of its public corruption cases over the last couple of decades, with the Supreme Court limiting the type of conduct that can be charged to a narrow lane, leaving conduct that our common sense might suggest is wrong outside of prosecutors’ jurisdiction. The Court did that, for instance, in cases involving Illinois Governor Rod Blagojevich (subsequently pardoned by Trump on charges that survived appeal) where it distinguished political horse trading from personal financial gain and Virginia Governor Bob McDonnell, where it narrowly defined official acts.

Despite the gravity of the allegations, or perhaps because of them, a case like It was undoubtedly reviewed by the Department’s criminal appellate lawyers, and perhaps, the Solicitor General herself to ensure that it did not run afoul of that body of caselaw. We may learn more this week, including whether Menendez will rehire lawyer Abbe Lowell, who got him off on the earlier charges. Lowell is currently representing Hunter Biden. It’s a small world.

We’re in this together,

Joyce

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