On April 1, 2015, the United States Department of Justice issued a 68 page indictment charging U.S. Senator Robert Menendez and Dr. Salomon Melgen, a Florida ophthalmologist, with 22 separate violations of American federal criminal law arising from their long running relationship. The Department alleges that Dr. Melgen provided Senator Menendez “domestic and international flights on private jets, first-class domestic airfare, use of a Caribbean villa, access to an exclusive Dominican resort, a stay at a luxury hotel in Paris, expensive meals, golf outings, and tens of thousands of dollars in contributions to a legal defense fund.” In return the Department claims that Senator Menendez used his position as a member of the U.S. Senate to advance Dr. Melgen’s personal and business interests.
If both Dr. Melgen and Senator Menendez stand by their initial responses to the indictment, prosecutors will find it very hard to prove that Melgen bribed Menendez. The doctor and the Senator are not disputing the facts; what they say is that they are friends and what each did for the other was motivated by friendship. To overcome this “gifts from a friend” defense, prosecutors must prove that what was in the minds of the two men when the gifts passed was not friendship but corruption. Showing what was in a defendant’s mind is always difficult and is even more difficult when the defendant offers a plausible, benign alternative. So unless the Department intends to call a mind reader as a witness, proving the 21 charges of bribery or acts relating to bribery in the indictment will be a challenge.
That’s what makes the 22nd charge so important.
The 22nd charge is laid against Senator Menendez alone. It alleges that for the years 2006, 2007, 2008 and 2010 he did not disclose the airline tickets, trips on chartered jets, stays in luxury hotels, and other gifts from Dr. Melgen. This is an easy charge to prove. Under section 102 of the Ethics in Government Act the Senator was required to report each year any gift received from any friend above a modest amount (currently $375). He either did or he didn’t report – no mind reading required. That is the beauty of laws requiring public officials to report their income, assets, debts, and positions held with profit or non-profit entities: simple to obey and simple to prove non-obeyance.
Although the Senator is mounting a vigorous defense to the bribery charges, even funding a web site to publicize his “gifts from friends” defense, about the failure to disclose the gifts he has said little. As the investigation into his dealings with Dr. Melgen was unfolding, the Senator was asked about his failure to report the gifts. His reply: “It unfortunately fell through the cracks.”
For countries trying to curb the kind of conduct revealed by the Menendez indictment, the case offers important lessons. First, be sure the law requires that gifts be disclosed. Gift disclosure laws vary around the edges. Some, like the Ethics in Government Act, exempt gifts from relatives and small gifts from disclosure, but as the Melgen-Menendez case shows, what matters most is that sizable gifts from anyone but a relative be reported. (Channeling gifts through a relative is one way to try and dodge the law, but as the McDonald case shows, that dodge is often easy to spot.) Second, be sure the failure to disclose carries stiff penalties. The U.S. law is a bit roundabout but gets the job done. A provision of federal criminal law makes it a crime punishable by up to five years in prison to make a false statement on a document that, like Senator Menendez’ disclosure report, must be filed with Congress.
Senator Menendez’ “fell through the cracks” defense is likely to be a tough sale. He either has to convince a jury that he forgot about Dr. Melgen’s largess or that he didn’t know he had to report it. It would seem to strain credulity that the Senator didn’t remember the fancy trips and other favors Dr. Melgen lavished on him. As for the “didn’t know the law” claim, that one too seems like a hard one to make given the Senator is a graduate of a distinguished American law school, has held a series of public offices that required him to file an annual disclosure, and has a large staff serving him. He really forgot? He really didn’t know? His staff really did not remind him?
As trial approaches, Senator Menendez may begin to think twice about the “fell through the cracks” defense. A jury could easily find he was not being truthful in saying he forgot about the gifts or didn’t know the law, and if it concludes he is trying to deceive them on these questions, it would surely be reasonable for them to think the same about “the gifts from friends” claim — in which case prosecutors would not need the testimony of a mind reader after all. The hurdle a gift disclosure rule creates for a public official trying to dodge a bribery charged is surely the most important lesson to take from the sorry facts of the Menendez case.