Menendez trial: “We’ll see,” said the judge

You might remember in 2009 when Chris Christie was our U.S. Prosecutor and “bribes went down in diners, living rooms and parking lots. NJ assemblymen took them, mayors took them, and so did dozens of others.” An indicted informant wearing a wire and acting as a developer or under another guise would make clear what he expected to be done for his money, often handing over a bag with thousands of dollars. And it was all on tape, resulting in clear corruption cases with a quid pro quo. The Menendez trial is very different.

Dr. Melgen and Sen. Menendez

After six weeks the prosecution has now rested its federal corruption case with no such “smoking gun.” There has clearly been a “stream of benefits” – Melgen contributing to Menendez and Menendez doing favors for Melgen. Menendez took 19 free rides on Melgen’s private jetsheld several meetings with U.S. health officials to help Melgen, and Melgen made more than $600,000 in campaign donations to get Menendez reelected in 2012.

Nonetheless, prosecutors have not directly linked any individual Melgen gifts to a specific Menendez act, which were often separated by months and even years. For example, there have been no e-mail or taped conversation proving a quid pro quo.

Furthermore, the “stream of benefits” argument that prosecutors have often used was dealt a blow in the U.S. Supreme Court’s 2016 decision overturning the corruption conviction of former Virginia Gov. Bob McDonnell. The court voted unanimously to narrow the scope of a law that bars public officials from taking gifts in exchange for “official action” saying “political courtesies generally do not [violate the law], even when the people seeking those favors give the public officials gifts or money.”  That ruling in the past year has led to the dismissal of several other convictions in corruption cases. Menendez has always claimed that he and Melgen were just friends and no bribery was involved.

Things were looking brighter for Sen. Menendez on Wednesday when Judge Walls told the prosecutor, “I’m particularly concerned about stream of benefits. And we’ll see.” Therein is the problem for the prosecutor and a possible escape hatch for the defendant.

The prosecutor has a strong case in the charges that Menendez filed false information by not listing his private jet flights and hotel stays provided by Melgen on his U.S. Senate financial disclosure forms. The case for bribery rests on more circumstantial evidence and is weaker.

Considering the lack of a smoking gun – no bag of money for an explicit purpose from someone wired – and the weakening of the “stream of benefits” argument, whether Menendez will be found guilty of bribery… well, “We’ll see” as the judge said.

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