Last Friday, the Department of Justice asked for another chance to try U.S. Senator Robert Menendez on corruption charges, requesting that the court “set the case for retrial at the earliest possible date.”  The first trial resulted in a mistrial.  Ten of the 12 jurors held out for acquittal, saying prosecutors had produced no “smoking gun.”  Yet the prosecution did indeed have a smoking gun – irrefutable proof the Senator broke the law – which it did in fact show the jury.

Prosecutors can learn much about trying corruption cases from the failure to convict Menendez the first time.  Not, as one commentator claims, that America’s anticorruption laws are so flawed only the most flagrant violators need fear them.  The lessons have nothing to do with America’s anticorruption laws, which are hardly in bad shape. Nor its system of 12 citizens determining the facts in a criminal case. 

The first lesson is that bribery is a very hard crime to prove.  All but one of the dozen crimes Menendez was accused of committing was bribery, accepting something of value in return for doing something for a Florida doctor. The evidence the doctor had showered Menendez with gifts was overwhelming.  But when a public official is charged with taking a bribe, the critical element is not that he or she accepted money, or in the Menendez case, “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.”  Rather, what is key is why the official received the payment.  The Menendez prosecutors alleged the Senator received the items listed in the indictment in return for helping the doctor win favorable decisions from the U.S. government.  Menendez countered that he and the doctor had known each other for years and what he did and what he received were just “gifts between friends.”

Ten jurors were not persuaded beyond a reasonable doubt (the ill-defined standard which jurors are told means “a doubt for which you can give a reason”) that what Menendez received were bribes rather than gifts.  The complaints that there was no smoking gun apparently arose from the absence of a letter or e-mail from the Senator to the doctor where the Senator wrote: “if you fly me on a private jet to the Caribbean and put me up at a fancy resort, I will intercede with the government on your behalf.” Absent such direct evidence of what was in Senator Menendez’ mind when he accepted the items, the jury was left to infer what was in his mind from the circumstances.  Apparently the 100 plus witnesses they heard and thousands of documents they were shown did not persuade them his intent was to do something for the doctor in return.

A second lesson the Menendez case teaches is that anticorruption prosecutors must not ignore or downplay crimes related to or associated with the corruption offense.  The one non-bribery charge Menendez faced was the failure to disclose what he received from the doctor.  The Ethics in Government Act requires the Senator to disclose each year any gift received from any friend above a modest amount (currently $375).  The irrefutable proof of his wrongdoing in the case was that he failed to report any of the items received from the doctor.  (Something which I wrongly predicted in an earlier post would ensure his conviction.) What seems to have happened at trial was that so much time and effort was spent on the details of each alleged bribe (including Menendez pressuring the State Department to issue tourist visas to young foreign women that were impliedly girl friends of the 65-year old married doctor) that the non-disclosure offense was lost in the haze of details.

Losing sight of the forest for the trees is a common failure in complex financial crime prosecutions.  Those who have spent months if not years gathering the facts are anxious to present every single one of them in excruciating detail. The fact finder’s eyes glaze over, and as at the first Menendez trial, the really significant facts get lost in the shuffle.  Press reports suggest that Department of Justice prosecutors have learned their lesson and will at the retrial present a much leaner case.

For the Department, the test will be whether they cut away enough of the bribery underbrush that they at least win a conviction on the non-disclosure crime.  Non-disclosure is not a crime that grabs the public’s attention.  Nor does it carry the moral approbation that a bribery conviction would.  But it a serious felony, one for which the Senator could receive up to five years in prison and a $50,000 fine and one that would surely end his career in public service.

For prosecutors in other jurisdictions, the lessons of Menendez are similar.  Absent direct evidence of intent, bribery is a hard to prove.  At the same time, nondisclosure, money laundering, and even the failure to pay taxes are crimes a bribe recipient almost always commits in accepting the bribe. Prosecutors who focus on bribery at the expense of offering proof on these violations run risk of the fact finder missing a smoking gun.