Ziran Zhang, an associate at Burnham & Gorokhov, PLLC, a Washington D.C. law firm, contributes the following guest post:

The Supreme Court’s decision last month in United States v. McDonnell has raised questions about the continued vitality of public corruption prosecutions in the United States. Some observers, including Professor Stephenson, pointed out that the decision itself was cast in narrow terms, and may not make a big difference to most public corruption cases.  I respectfully disagree: McDonnell created an important substantive rule of law that will have a lasting impact, and this impact is apparent when one applies McDonnell’s holding to another high-profile public corruption case—the prosecution of former New Jersey Senator Robert Menendez.

To prove a bribery offense, the government must show (among other things) that the public official promised an official act, defined further as a “decision or action” on a “question or matter” (or cause, proceeding, or suit). A “question or matter,” the McDonnell opinion holds, must be a “formal exercise of government power” that is “specific” and “concrete.” As for a “decision” or “action,” it can be direct (such as when an official issues an order or makes a decision) or indirect (such as when an official “exerts pressure” or “gives advice” to another official.) McDonnell left substantial uncertainty over what counts as “exerting pressure” or “giving advice.”  As Professor Stephenson’s post points out, pressure is inherent from any kind of contact between a subordinate and an official in high office, but in McDonnell the Supreme Court quite clearly rejected that view, indicating that something more is required.

So, how does the McDonnell holding affect the prosecution of Senator Menendez? The facts of the Menendez prosecution are remarkably similar to those of the McDonnell case. According to the indictment, Senator Menendez had a longstanding friendship with Dr. Salomon Melgen. Melgen gave Menendez gifts, such as free flights, luxury hotel stays, and money to various political campaigns benefiting Menendez; Menendez returned the favors in various ways:

• Visas for girlfriends. Melgen’s three foreign girlfriends needed visas to visit the United States. Menendez or his staffers reached out to officials at the Department of State to advocate on Melgen’s behalf.
• Medicare billing dispute. Melgen’s ophthalmology practice was audited and found to owe the Centers for Medicare & Medicate Services (CMS, a division of the Department of Health and Human Services (HHS)) over $8 million for improper Medicare billing practices. Menendez and his staffers contacted various officials at CMS and HHS, including the HHS secretary, to advocate for Melgen. Menendez also arranged for Melgen to meet two other senators regarding this dispute. CMS and HHS, however, never reversed their positions and continued to insist that Melgen owed the money.
• Donations of equipment to the Dominican Republic. Melgen heard a rumor that Customs and Border Protection (CBP) was providing the Dominican Republic government with cargo screening equipment, in competition with his own company’s business. Menendez, through a staffer, reached out to CBP and claimed that “criminal elements” within the D.R. government wanted CBP’s inferior equipment for an ulterior purpose. CBP responded that it never had a plan or agreement to donate equipment to the D.R.
• Contract dispute with Dominican Republic government. Melgen owned a company with an ongoing commercial dispute with the Dominican Republic government. Menendez and his staffers asked the Department of State to intervene, although he did not request any specific action. According to one Department official, Menendez threatened to call a senate hearing if the Department failed to intervene.

To decide whether Senator Menendez violated the federal anti-bribery laws (assuming, for the moment, that one can prove that the senator accepted something of value in exchange for any or all of the above), one must first ascertain whether any of the things that Senator Mendez did or promised count as “official acts,” which in turn requires—following the McDonnell holding—two things: First, identification of the concrete “questions or matters” involved, and second, determining whether Menendez made (or promised) a “decision” or took an “action” on each question or matter.

Let’s start with the first step, identifying the “questions or matters” involved. At least two seem fairly straightforward: visas for Melgen’s girlfriends, and the Medicare billing dispute. Menendez’s alleged attempt to prevent CBP from donating cargo screening equipment may at first seem a bit more complicated, given that CBP did not actually have a plan to donate equipment, but the bribery statute defines official acts as decisions or actions on questions or matters that are pending or may by law be brought before an official, and what matters is the intent of the parties at the time they make their decision, so this also likely qualifies as a “question or matter.” However, Menendez’s attempt to get the State Department to intervene in a contract dispute between Dr. Melgen’s company and the Dominican Republic government may fail to qualify under the McDonnell Court’s interpretation of the statute: Neither Menendez nor Melgen sought to have the State Department perform any specific action, much less one that clearly involves a formal exercise of government power.  Thus, this appears to be an instance where the government has not alleged sufficient facts to show that there was an “official act,” though the point is perhaps debatable.

Having identified the specific questions or matters involved, the next step is determining whether Menendez made or promised a “decision” or “action” on each question or matter. Let’s go over them one by one, in light of the McDonnell opinion:

• Visa applications: The indictment alleges that Menendez expressed support for the approval of the visa applications, but did not otherwise threaten Department officials or press for a specific outcome. Under McDonnell, expressing support does not, without more, qualify as taking a decision or action on a question or matter.
• Medicare billing dispute: Menendez’s advocacy for Melgen’s position in the Medicare billing dispute never extended beyond legal arguments and (maybe) factual statements. Viewed in this light, his advocacy would probably not qualify as “exerting pressure” or “giving advice” on a “question or matter.” Admittedly, however, internal emails from officials in the HHS and CMS suggest that they felt pressured by Menendez’s persistent efforts, and whether Menendez’s actions crossed the line would depend on the specific facts developed at trial.
• CBP’s donation of cargo screening equipment: Read in the light most favorable to the government, Menendez gave false information to the CBP by claiming that there were criminal elements in the Dominican Republic government who wanted the equipment. However, because he does not have either a duty or authority to supply information to CBP officials, these statements cannot be construed as advice. And it does not appear that Menendez exerted pressure or gave advice to another official on a question or matter.
• Intervention in Melgens’ contract dispute: As noted above, I do not think the State Department’s intervention in Melgen’s contract dispute is a “question or matter.” However, if it does count as a “question or matter,” then Menendez’s actions, in particular his threat to call a Senate hearing should the Department fail to intervene, might well be viewed as exerting pressure on Department officials.

In sum, then, while the allegations in the Menendez case might have sufficed for federal prosecution before McDonnell, at least three of the four alleged violations of the federal anti-bribery statutes now appear to be in doubt. Under McDonnell, Senator Menendez’s contacts to the State Department in support of visas for Dr. Melgen’s girlfriends and his contacts with CBP about the alleged donations of equipment to the Dominican Republic are not “official acts” because they do not show “pressure” on other government officials beyond the facts of the contacts themselves (which McDonnell deemed insufficient). Threatening to hold a Senate hearing regarding Dr. Melgen’s contract dispute with the Dominican Republic could certainly count as “pressure” on State Department officials, but in this case there was no specific government “decision or action” that Senator Menendez was trying to influence. As for the Medicare billing dispute, here there is a decision or action, and it’s at least possible that the government might be able to prove beyond a reasonable doubt that there was pressure that went beyond simply expressing an opinion—but this is something the government would need to go to trial, and where the government would face a difficult challenge.

In Professor Stephenson’s post, he says there is a “glass half full” and “glass half empty” view of the McDonnell decision.  On the “glass half full” view, McDonnell was just a case about jury instructions. However, as I hope was made clear in the analysis I provided above, McDonnell made an important substantive change in bribery law (at least compared to the government’s legal theory in McDonnell). After McDonnell, there is a range of permissible conduct that politicians can perform using the prestige and powers of their office—even with a quid pro quo—for their constituents, without running afoul of federal bribery laws. Although unseemly, that seems to be the sacrifice the court is willing to make to preserve what it views as legitimate democratic activity.