Tag Archives: Senator Robert Menendez

When Do Partisans Turn on One of Their Own? Reflections on the New Menendez Case

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The biggest corruption-related political news in the United States over the past couple of weeks is the decision by the Department of Justice (DOJ) to indict Senator Bob Menendez (Democrat of New Jersey) for allegedly taking bribes (including cash, gold bars, and a luxury car) from several businessmen, in exchange for using his influence to help these businessmen in various ways. If you’re having a sense of déjà vu, it’s because we’ve seen this movie (at least the beginning) before: Back in 2015, the DOJ indicted Senator Menendez for accepting lavish gifts from a wealthy friend and campaign donor, allegedly in exchange for using his influence to help advance that donor’s personal and business interests. That prosecution was unsuccessful: The DOJ pursued the case, but although the prosecutors prevailed on some important issues of law, the trial, which took place in 2017, ended in a hung jury—presumably because some of the jurors did not think that prosecutors had proved, beyond a reasonable doubt, that the luxury trips and gifts bestowed on Senator Menendez were bribes, rather than personal hospitality offered by a close friend.

It remains to be seen whether the legal outcome will be different in this case (and of course, it should go without saying, Senator Menendez is entitled to the presumption of innocence in a court of law, though he is entitled to no such presumption in the court of public opinion). But there is already one notable difference between the current case and the 2015 case: the reaction of Senator Menendez’s colleagues in the Democratic party. As I write this (several days before the post will likely be published, so forgive me if this is a bit out of date), a number of prominent Democrats, including New Jersey Governor Phil Murphy, several Democratic Senators, and numerous Democratic House Members, including former Speaker Nancy Pelosi, have called on Menendez to resign. To be sure, as a critics have noted, several leading Democrats—including President Joe Biden and Senate Majority Leader Chuck Schumer—have not called on Senator Menendez to resign. But this is still a marked contrast from 2015, when to the best of my recollection (and readers should feel free to correct me if I’m wrong) no prominent Democrats called on Senator Menendez to resign. Why the difference? Continue reading →

The Stream of Benefits Theory of Bribery Doesn’t Criminalize Ordinary Politics

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Bribery of a public official can take one of at least two forms. In the most straightforward case, a public official accepts a one-off bribe in exchange for a particular official act. This kind of one-to-one exchange is illustrated by a recent case out of Puerto Rico, in which a territorial senator agreed to a direct trade: he would support legislation favorable to a local businessman’s security company, and in return he would receive an all-expenses-paid trip to Las Vegas. Things aren’t always so neat, however. Sometimes bribery involves a series of gifts to a public official in exchange for a series of official acts, and seldom do these gifts and official acts line up in a one-to-one fashion. An example of this kind of bribery can be seen in a recent case out of Texas, where, over an extended period of time, a local developer provided a town mayor cash, home renovations, hotel stays, airline upgrades, and even employment, and the mayor repeatedly voted for zoning changes that ultimately allowed a developer to build apartments.

Anticorruption officials in the United States prosecute the latter form of bribery under a “stream of benefits” theory of liability. Rather than requiring prosecutors to demonstrate tit-for-tat trades—in which a specific “thing of value” is offered or exchanged for a specific official act—under the stream of benefits theory unlawful bribery has also occurred when the prosecution can show a “course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.” Some courts and commentators have described the idea as the briber regularly paying the public official to keep her “on retainer” with the expectation that she will help the briber out as opportunities arise. The stream of benefits theory recognizes that most bribes aren’t one-off trades of a thing of value for a particular official act. Instead, bribery often takes place in the context of a long-term, multifaceted relationship where there’s a general understanding along the lines of “I’ll scratch your back if you scratch mine.” Where gifts flow regularly to the official and the official occasionally acts for the benefit of the gift-giver, it would be difficult for prosecutors to prove that any particular gift instigated a particular official act. But as then-Judge Sonia Sotomayor once reasoned: “[A] reading of the [bribery] statute that excluded such schemes would legalize some of the most pervasive and entrenched corruption, and cannot be what Congress intended.” Accordingly, the stream of benefits theory has been approved by every federal circuit court that has ruled on the issue.

Yet despite the stream of benefits theory’s intuitive appeal, it has recently come under attack. Most prominently, a federal judge threatened to derail the trial of U.S. Senator Robert Menendez before it began by questioning the theory’s continued validity in light of the U.S. Supreme Court’s 2015 decision in the McDonnell case (which, as explained in more detail below, adopted a strict interpretation of what constitutes an “official act” under the U.S. bribery statute). Although the judge in the Menendez case ultimately determined that the stream of benefits theory was still good law, many commentators aren’t so sure. The Cato Institute, for one, speculates that McDonnell’s strict reading of the bribery statute requires the identification of a specific official act to be performed, rather than accepting as adequate the promise of future, undefined official acts in the briber’s favor. Others, like Professor Randall Eliason, argue that the Supreme Court already (albeit implicitly) rejected the stream of benefits theory on those grounds in a 1999 case called Sun-Diamond.

These attacks reflect a broader policy concern: fear that overly broad bribery statutes criminalize ordinary politics. Professor Albert Alschuler, for instance, asserts that the “principal danger” with the stream of benefits theory is that it “invites slippage” from a “quid pro quo requirement” to a “favoritism” standard. Favoritism, he argues, is endemic in politics––a politician will naturally favor allies and stakeholders who have supported him politically (and financially). Criminalizing favoritism is akin to criminalizing innocent political conduct, which, in turn, has far-reaching secondary effects, such as deterring good people from government service and giving prosecutors too much power to enforce the law selectively. The Supreme Court’s decision in McDonnell, though technically on a different issue, also expressed worries about how a “boundless interpretation of the federal bribery statute” could wind up criminalizing ordinary politics.

These fears are overblown. As other commentators have persuasively argued, the stream of benefits theory remains viable, and has not been expressly or implicitly repudiated by the Supreme Court in McDonnell, Sun-Diamond, or elsewhere. (See, for example, here and, on this blog, here.) I agree, but my main argument here concerns the detractors’ underlying policy concern. Put simply: the stream of benefits theory doesn’t criminalize ordinary politics.

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Thoughts from the Menendez Trial: Preventing Corruption from the Start

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Last fall’s corruption trial of U.S. Senator Robert Menendez (D-NJ) ended rather anticlimactically, with the presiding judge declaring a mistrial after the jury announced that it couldn’t reach a decision, and the Department of Justice eventually deciding not to retry him. Senator Menendez had been accused of taking donations and gifts from Florida ophthalmologist Salomon Melgen in exchange for advocating for visas for Melgen’s foreign girlfriends, the award of a government contract, and the resolution of a Medicare billing dispute. Plenty of digital ink has already been spilled on the broader implications of the Menendez case for other bribery prosecutions (on this blog here, and elsewhere here and here).

But putting aside the specifics of the case, what caught my eye about the allegations against Senator Menendez was a background feature of U.S. law that seems to have gone largely undiscussed: It’s perfectly legal (and normal) for non-constituents to contribute to political candidates. In other words, even if you are barred from voting for a candidate because you live outside that candidate’s district, you can still express your support by pulling out your checkbook. That lack of constraint on donations seems to invite the very kind of corruption the government alleged in the Menendez case, because it allows a wealthy donor to find and purchase his or her own “personal United States senator.”

I’m certainly not the first person to voice the concern that allowing non-residents to contribute to political candidates may facilitate corruption. Two states—Alaska and Hawaii—have recognized the risk posed by allowing non-residents to contribute to political candidates. They’ve responded by limiting those donations. But in the Lower 48 and in all federal elections, there are no differential limits on contributions from people residing outside the state, so long as they are American citizens or permanent residents. (Alaska’s law is currently facing a First Amendment challenge from an aspiring donor whose gift was returned because the candidate he supported had already reached the out-of-state contribution limits. A federal judge upheld the law as a “closely drawn” effort by the state to prevent “quid pro quo corruption or its appearance,” but the would-be donor has appealed.) Putting aside the constitutional defenses of the sorts of laws that Alaska and Hawaii have adopted (which you can find in the amicus briefs filed in the Alaska case here, here, and here), there are strong policy reasons for limiting contributions by people living outside a state or district—not least because such limits, as the judge in the Alaska case noted, can be a useful tool for preventing corruption or its appearance:

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Learning from Defeat: The Menendez Case

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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.  Continue reading →

Is It Time to Amend U.S. Domestic Anti-Bribery Statutes?

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Last month’s hung jury in the trial of New Jersey Senator Robert Menendez, coming hard on the heels of appellate court decisions to vacate the convictions of former U.S. Congressman William Jefferson and New York state legislators Dean Skelos and Sheldon Silver, has increased public attention to domestic U.S. anti-bribery laws—and the Supreme Court’s interpretation of those laws. As Professor Zephyr Teachout puts it, the Court, beginning in the 1999 case Sun-Diamond Growers and continuing up through last year’s decision in McDonnell, has steadily “hollowed out” U.S. anti-bribery laws, making it much more difficult to convict “anyone but the most inept criminals.”

Now, some of the recent commentary, particularly on the impact of the McDonnell case, may overstate things a bit. As Maddie pointed out in a recent post, the fact that the Skelos and Silver convictions (and, she might have added, the Jefferson conviction) were vacated in light of McDonnell doesn’t necessarily imply that the conduct alleged in those cases is now legal. Rather, the appellate decisions held that the jury instructions were improperly phrased, and left the door open for a retrial (which will occur in these other cases, even though the government declined to retry McDonnell). And we don’t really know how much of an effect the Supreme Court’s decision in McDonnell or other cases affected the jury’s inability to reach a verdict in Menendez; it’s possible that even with a jury instruction identical to the one found deficient in McDonnell, some of the Menendez jurors would have voted to acquit. All that said, there are certainly good reasons for concern about the seemingly narrow scope of U.S. anti-bribery law.

Some of this blame, as Professor Teachout persuasively argues, can be laid at the feet of the Supreme Court. Indeed, I argued that McDonnell’s conviction should have been affirmed, and criticized the Court’s unanimous decision to vacate it. That said, I do think there’s an argument in favor of the Supreme Court’s ruling in McDonnell, at least if the holding is read narrowly as concerning the phrasing of the jury instructions. Likewise, in Sun-Diamond Growers, the Court’s holding is actually quite plausible as a reading of the unlawful gratuities statute. (The Court held that a conviction under this statute, which prohibits corruptly giving anything of value to a public official “because of any official act” performed by that official, requires the government to show a connection between the gift and a specific official act, rather than relying on the more general claim that the recipient is in a position to make decisions that affect the giver’s welfare. The Court’s interpretation of the statutory language, while contestable, is certainly reasonable.)

Moreover, if we’re looking for an institution to blame for the current state of U.S. anti-bribery law—or to lobby for improvements in that law—the Supreme Court is perhaps not the only target. There’s also the U.S. Congress, which could, and arguably should, amend the hodge-podge of anti-bribery laws to fill some of the gaps that we find in current law, as interpreted by the Supreme Court. After all, though the Court has dropped occasional troubling hints about possible constitutional concerns with a broad reading of the anti-bribery statutes, most of the Court’s rulings in this area, in contrast to the related but distinct campaign finance context, are statutory rather than constitutional. And that means that Congress could conceivably step in to fix the problem. Continue reading →

US Anticorruption Policy in a Trump Administration Revisited: An Evaluation of Last Year’s Doom-and-Gloom Predictions

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Almost exactly one year ago, the day after the U.S. presidential election, I published a deeply pessimistic post about the likely future of U.S. anticorruption policy under a Trump presidency. As I acknowledged at the time, “the consequences of a Trump presidency are potentially so dire for such a broad range of issues–from health care to climate change to national security to immigration to the preservation of the fundamental ideals of the United States as an open and tolerant constitutional democracy–that even thinking about the implications of a Trump presidency for something as narrow and specific as anticorruption policy seems almost comically trivial.” That statement is, alas, still true. But what about the impact on anticorruption specifically? In my post last year, I made a bunch of predictions about the likely impact of a Trump presidency on corruption, anticorruption, and related issues. What did I get right and where did I go wrong?

This may seem a bit self-indulgent, but I think it’s often useful to go back and assess one’s own forecasts, not only in the interests of accountability and self-criticism, but also because examining where we got things right and, more importantly, where we went wrong can help us do a better job in the future. Of course, one difficulty in assessing my own predictions is that many of them concerned longer-term effects that we can’t really assess after one year (really 9+ months). And in some cases the predictions concern things that it’s hard to assess objectively. But it’s still a useful exercise. So, here goes: Continue reading →

Did the McDonnell Decision Legalize Putting Public Officials on Retainer? Menendez’s Challenge to the “Stream of Benefits” Theory

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In my post two weeks ago, I argued that in order to assess whether the U.S. Supreme Court’s decision in the McDonnell case would have a major impact on public corruption prosecutions—and in the slightly-hyperbolic words of some commentators, whether the decision “legalized public corruption”—the case to watch is the trial of New Jersey Senator Bob Menendez. Since most of the case law coming out of the McDonnell decision has focused on the definition of “official acts” in the context of quid pro quo bribery, many of those watching the Menendez trial expected it to center on how the court interpreted “official acts,” and whether Menendez’s actions qualified. But the case took an unexpected twist: the same day I published my post, Judge William Walls zeroed in on McDonnell’s effect on the prosecution’s stream of benefits theory of corruption—a key part of the government’s case.

According to the “stream of benefits” theory of corruption, prosecutors can establish an implicit quid pro quo by showing that a series of bribes were made to keep an official “on retainer,” so the donor can benefit from the official’s service as needed. In other words, on this theory, the government does not need to connect a specific individual gift to a specific individual act. Instead, the government can show that the private party provided a series of payments or gifts to the public servant over time, in exchange for the public servant being “on call” to perform official acts in return as needed. On this theory, the specific official act (the “quo”) doesn’t need to be known or contemplated at the time of the bribe (the “quid”). In Menendez, prosecutors invoked that theory, and attempted to show that the many favors Dr. Salomon Melgen did for Senator Menendez over a period of several years—such as rides on his private plane and trips to luxury resorts in the Caribbean—were offered in exchange for a series of actions Menendez took to lobby the executive branch on Dr. Melgen’s behalf. (The government alleges other charges against Menendez, such as making false statements on financial disclosure forms related to the bribery, but the stream-of-benefits bribery allegations are the heart of the case.)

Senator Menendez’s defense team—drawing on an argument developed in a Cato Institute report—moved to dismiss the case, arguing that McDonnell narrowed the scope of “official act” so much so that the public official must agree to perform a “specific and focused” act rather than a “broad policy objective,” meaning that the theory that a public official is kept “on retainer” in exchange for a series of favors cannot stand. Judge Walls said he was not sure that the stream of benefits theory was still viable after the McDonnell ruling, and asked the parties to brief the issue over the weekend, even saying to the DOJ lawyers that “if stream of benefits still lives, then you’ve got a chance.” Commentators accordingly rang the alarm bells, worried what extending McDonnell this far would mean for public corruption cases (see here and here).

Judge Walls eventually ruled last Monday that McDonnell did not prevent prosecutors from arguing a stream of benefits theory, concluding instead that the issue of whether there was a quid pro quo was a question of fact for the jury to decide. This was the right decision. Indeed, it’s troubling that the judge took the issue as seriously as he seemed to, as the idea that a fair reading of McDonnell requires outright rejection of the stream of benefits theory seems farfetched. Continue reading →

To Gauge McDonnell’s Impact, Menendez—Not Skelos or Silver—Is the Case To Watch

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In June 2016, the United States Supreme Court vacated the conviction of former Virginia Governor Bob McDonnell. McDonnell had been convicted for accepting loans, gifts, vacations, and other valuable items from a businessman. In return, Governor McDonnell allegedly promised or performed a number of “official acts,” mostly in connection with trying to help the businessman get state government support for a nutritional supplement his company was developing. The Supreme Court vacated the conviction on the grounds that the trial court improperly instructed the jury on what conduct could count as an “official act” (the “quo” in a quid pro quo) under the federal bribery statute. In particular, the trial court had instructed the jury that “official acts” could include things like helping the businessman by arranging meetings with state government decision-makers, hosting an event to promote his business, or suggesting that subordinates speak to him. The Supreme Court ruled that this definition of “official act” was too broad, since it encompassed almost any act a government official takes.

How much did McDonnell change the landscape for federal corruption prosecutions in the United States? Some worry that it has already had a large and unfortunate impact, and point to recent developments in New York: Last July, a little over a year after the McDonnell decision, a federal appeals court relied on McDonnell as the basis for vacating the conviction of Sheldon Silver, the former New York State Assembly Speaker who was found guilty in 2015 for taking millions in payments in return for supporting legislation and directing grants that helped the payers. And just last month, another panel of that appellate court also relied on McDonnell in vacating the conviction of former New York State Senate Majority Leader Dean Skelos, who was convicted in 2015 (along with his son Adam) for bribery, extortion, and conspiracy. According to prosecutors, Skelos had promised votes and taken actions benefitting three companies in exchange for providing his son with consulting fees, a job, and direct payments.

Skelos’ and Silver’s convictions were seen as a victory for federal prosecutors, and a much-overdue effort to clean up the notoriously corrupt New York state government. Many commentators pointed to the recent appellate court rulings vacating those convictions as evidence of McDonnell’s broad and malign effects on efforts to clean up corruption (see, for example here , here, and here). But while the vacations of these convictions are a setback for anticorruption advocates, they do not actually reveal much about the reach of McDonnell, nor are they likely to materially change the fates of Skelos and Silver. The much more important case to watch—the one that will be a better indicator of McDonnell’s long-term impact— is the trial of New Jersey Senator Robert Menendez. Continue reading →

Guest Post: What the McDonnell Ruling Means for Future Corruption Prosecutions

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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: Continue reading →

Senator Menendez and the Great Speech or Debate Clause

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The corruption allegations against Senator Robert Menendez (D-NJ) have the hallmarks of a classic Capitol Hill scandal. The Department of Justice’s Public Integrity Section indicted Senator Menendez last spring for allegedly using his official position to promote the business and personal interests of his friend and long-time donor Dr. Salomon Melgen, a Florida ophthalmologist. According to the allegations, Dr. Melgen provided Senator Menendez with lavish trips to Florida, Paris, and the Dominican Republic, as well as political contributions to allies. In exchange, Senator Menendez allegedly interceded with immigration authorities to help Dr. Melgen secure visas for his foreign girlfriends, sought to influence an administrative enforcement action against Dr. Melgen for $8.9 million in Medicare overbilling, and pressured the Executive Branch to intervene in Dr. Melgen’s contract dispute with the Dominican Republic.

Unsurprisingly, this legal fight has been ugly. Senator Menendez and his legal team have accused the prosecution of gross misconduct in the grand jury investigation, of “misapplying” and “making up from whole cloth” certain legal standards, and “disparaging defendants’ motives and defense counsel.” The prosecution, for its part, has accused the Senator’s camp of deploying “vituperation” instead of substance and of advancing “false factual premises and specious legal reasoning.”

The latest iteration of this saga is taking place at the appellate level, where the Third Circuit recently heard oral arguments on Senator Menendez’s assertion that his actions on behalf of Dr. Melgen are entitled to immunity under the U.S. Constitution’s “Speech or Debate” Clause (an argument the trial court rejected). The Speech or Debate Clause provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” Like many legislative immunity clauses in other countries, the Speech or Debate Clause was born in part out of a desire to protect legislators from political prosecution for the views they express when legislating, and to encourage free and informed debate.

U.S. courts have interpreted the Clause quite generously over the years, reading it to cover not only actual speeches and debates, but also other “legislative acts” (such as voting on legislation, authorizing an investigation by a Congressional Committee, preparing reports, and holding hearings). Senator Menendez, however, argues for an even broader understanding of the conduct that qualifies as “legislative acts” shielded by the Clause. These arguments should be rejected. Not only are Senator Menendez’s claims legally dubious under existing precedents, but, if accepted, they would also hamstring the prosecution of classic quid pro quo corruption.

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