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.
GAB | The Global Anticorruption Blog 
Rick, I think you’re right that Sen. Menendez may largely abandon any defense to the disclosure charge and instead concentrate his trial efforts on the “gifts from a friend” defense. (I’ve personally always been fascinated by the trial strategy, adopted by many defendants, of attempting to preserve credibility in challenging a bigger, more contestable charge, by essentially conceding guilt on a lesser charge.) But it is worth pointing out, of course, that getting “gifts” from someone with whom you share a preexisting relationship would still be prohibited conduct if the “gifts” were given or received with the intention of soliciting or exchanging some official act on the part of the government official. So the problem isn’t that the “gifts from a friend” negates any possibility of a quid pro quo exchange; rather, it is simply — as you rightly suggest — that it offers a plausible narrative that may obscure any actual quid-pro-quo agreement.
I would also point out that a further complication in this case is that some of the alleged conduct apparently involved contributions by Dr. Melgen to independent political action committees. As I explained in a prior post (https://globalanticorruptionblog.com/2015/02/13/prosecuting-elected-officials-for-corruption-a-tale-of-four-governors/), it is extraordinarily difficult for prosecutors to prove quid pro quo corruption when the something of value traded for an official’s official act happens to be campaign contributions, and even more so when those contributions are to a third party committee.
The strategy of conceding on a small charge in order to maintain credibility for larger charges is really interesting, Jordan, particularly in Sen. Menendez’s case where the concession could also impute a mens rea for the larger charge. As Rick points out, if the Senator stands by his ‘it fell through the cracks’ argument, they jury would be rightly incredulous. If he abandons this defense/concedes on this charge, his credibility on the larger charges would–I would think–be severely undermined as regards the purpose of these gifts. While it doesn’t get us all the way there (Sen. Menendez could come up with some unflattering reason for accepting the gifts that is not necessarily peddling the influence of his office to advance Melgen’s interests), whatever reason he gives will have to align with the fact that he felt the need to hide the gifts. All of this is to say that you make a truly compelling case, Rick, for the importance of a strict liability disclosure requirement.
Good point; Sen. Menendez will have to fight the disclosure charge indirectly as part of this battle against the corruption charges. That is, the defenses will be intertwined to the extent that he wants to tell a single narrative that these are “gifts from a friend” and that he simply forgot to disclose them because he didn’t think of them as some questionable outside financial contribution, but rather something shared between old pals. In other words, the “mens rea” (oops, I didn’t mean to) plea with respect to the disclosure charge, will be part of the broader “I didn’t intend to trade him benefits” defense. Because surely he can’t just say “Yes, I intentionally hid these, but no, they’re not quid pro quo bribes.” Those two messages conflict, which suggests this isn’t a pure case of professing guilt under one charge in order to combat a greater charge.
The numbers at issue in this case look very bad for Senator Menendez. Airline travel worth tens of thousands of dollars over a period of 4 years hardly seems like an oversight. Jordan makes the important point that corruption among friends is still corruption. While the line between friendship and illicit relationship is often blurry, the Menendez-Melgen doesn’t really feel like a borderline case. It’s one thing for the two of them to fly to Florida on a jet together. It’s another for Melgen to charter an $8,000 plane for Menendez independent of any joint travel and for Menendez to intervene in a $9 million lawsuit. Friends or not, these actions feel wrong, likely because of the amount of money involved. Menendez may put all his eggs in the friendship basket but even that may only carry him so far. Quid pro quo or otherwise, the case certainly evokes the discomfort of potential institutional corruption.
I agree that disclosure rules could be a very effective way to get convictions on some crimes that are otherwise extremely difficult to prove. This got me wondering, however, whether a conviction on a failure to disclose would feel to the public (to the extent that they are paying attention) like a technicality — the equivalent of nailing Al Capone on tax charges or any number of prominent people, including Martha Stewart, for lying to investigators rather than for the underlying crime. I suppose the logical follow up question to that is whether it matters if it’s just a technicality — it would certainly be an improvement on a system that had no way to prove what was corruption and what was simply friends being extremely generous.