Outside the Beltway

Justice Department Won’t Be Retrying Senator Bob Menendez On Corruption Charges

Embattled New Jersey Senator Bob Menendez has dodged a bullet, but still faces uncertain prospects for reelection.

Doug Mataconis · Wednesday, January 31, 2018 · 8 comments

The Justice Department has announced that it will be dismissing the remaining corruption charges against New Jersey Senator Bob Menendez, meaning that he will not be facing the prospect of a retrial in the middle of a reelection campaign later this year:

The Department of Justice moved on Wednesday to dismiss the remaining charges against Senator Robert Menendez, just weeks after prosecutors announced their intent to retry him on federal corruption charges, a decision that would allow the New Jersey Democrat to avoid running for re-election while under indictment.

The motion to dismiss cites a decision last week by Judge William H. Walls to acquit Mr. Menendez of seven of the 18 charges he had faced, which included bribery charges stemming from accusations that he accepted political donations from a wealthy Florida eye doctor in exchange for lobbying on the doctor’s behalf. The doctor, Salomon Melgen, was also charged in the case.

The prosecutor’s request will be decided by Judge Jose L. Linares, the chief United States district judge in New Jersey, who has temporarily taken over after Judge Walls recused himself.

“Given the impact of the court’s Jan. 24 order on the charges and the evidence admissible in a retrial, the United States has determined that it will not retry the defendants on the remaining charges,” said Nicole Navas, a spokeswoman for the Justice Department.

The trial of Mr. Menendez and Dr. Melgen, who have been longtime friends, ended in a mistrial in November after a jury said it could not reach a verdict. One juror told reporters that the panel had been deadlocked 10 to 2 in favor of acquittal. Mr. Menendez had been charged with using the power of his office to conduct favors for Dr. Melgen in exchange for lavish gifts, trips on a private plane and political contributions.

Mr. Menendez had claimed he was vindicated after the mistrial — even though he remained under indictment — and was quick to celebrate Wednesday’s decision.

More from The Washington Post:

The Justice Department asked a judge Wednesday to toss out its indictment against Sen. Robert Menendez, as anti-corruption prosecutors signaled surrender in the case a week after the judge voided some of the charges.

In a terse filing, federal prosecutors asked U.S. District Court Judge Jose Linares to “dismiss the superseding indictment” against Menendez, a New Jersey Democrat. Such requests from prosecutors to drop charges are almost always granted.

The move to dismiss charges is a complete reversal by the Justice Department. Only two weeks earlier, prosecutors had filed notice to the court they intended to keep pursuing the case after the first trial ended in a hung jury.

In response to the Justice Department’s decision to drop the charges, Menendez said in a statement, “From the very beginning, I never wavered in my innocence and my belief that justice would prevail. I am grateful that the Department of Justice has taken the time to reevaluate its case and come to the appropriate conclusion.”

Judge William Walls, who had presided over the first two-month trial, subsequently dismissed seven of the 18 counts in the indictment, but let stand the 11 remaining charges.

“Given the impact of the court’s Jan. 24 order on the charges and the evidence admissible in a retrial, the United States has determined that it will not retry the defendants on the remaining charges,” the Justice Department said in a statement.

Menendez’s first trial ended in a mistrial in November, with 10 of the 12 jurors voting to acquit him, according to a member of the jury.

The retreat on the Menendez case marks a setback for public integrity prosecutors at the Justice Department, as legal experts have questioned whether their authority to pursue such cases will be more limited in the wake of the Menendez mistrial and an earlier Supreme Court ruling.

Menendez, a senior lawmaker, has spent years fighting the charges. Prosecutors said he took gifts from Florida eye doctor Salomon Melgen, including a luxury hotel stay, private jet flights and campaign donations, in exchange for which he tried to help Melgen get U.S. visas for his girlfriends, intervened in the eye doctor’s $8.9 million billing dispute with Medicare and assisted with a port security contract of Melgen’s in the Dominican Republic.

Menendez has long maintained that the government’s charges are an attempt to criminalize a longtime friendship between the two men, and that there was nothing corrupt about his acts on Melgen’s behalf or Melgen’s financial support of the senator.

This decision comes roughly two months after the case against Menendez ended in a mistrial after more than two weeks of jury deliberations during which the jury was sharply divided over Menendez’s guilt. A juror who was released during the deliberations, for example, said that the jury was sharply divided on guilt and that she herself had been a vote for acquittal each time the jury had voted during the previous week. Given this, it did not come as a surprise when the jury reported that it was deadlocked, although at that point the Judge instructed them to resume deliberations and attempt to reach a verdict even if it was only on some of the counts pending in the case. Obviously, that effort has ended in failure. Subsequently, the Judge presiding over the case dismissed seven of the eighteen counts that Menendez was facing. The charges that were dismissed seemed like they were central to the case against the New Jersey Senator since they were the ones that specifically alleged a quid pro quo between Menendez and his longtime friend and it brought into question just how strong a case prosecutors would have if they chose to proceed ahead with a retrial notwithstanding the Judge’s ruling.

As I noted when the trial began in September, the actual outcome of the case was in doubt in no small part due to the recent Supreme Court ruling in the case of former Virginia Governor Bob McDonnell:

In September of 2014, former Virginia Governor and his wife were convicted on a long list of charges stemming from their relationship with a high-profile Virginia businessman who had provided many benefits to the Governor and his family during the time he was in office. These benefits included mundane items such as jewelry and a shopping spree trip to New York City by Mrs. McDonnell, picking up the expenses related to the wedding of the McDonnell’s daughter, and other payments over the course of the Governor’s time in office. Federal prosecutors alleged and were ultimately able to convince a jury, that these payments were made in exchange for McDonnell providing access to state offices and officials for the donor and his company, which was seeking approval by state regulators for various products that it produced. McDonnell appealed the verdict and, while the Fourth Circuit ruled against him, he ended up winning in the U.S. Supreme Court after which prosecutors ultimately decided not to seek a second trial. Like McDonnell, Menendez is essentially accused of providing access to government resources in exchange for the gifts provided by his friend. However, in its decision the Supreme Court held that the prosecution and the District Court went too far in relying upon a definition of so-called ‘honest services fraud’ in proceeding with the case against him, and that the law basically requires some showing that the accused committed an illegal act in exchange for whatever benefits may have been provided to him. Simply lobbying on behalf of the gift giver with regulators or legislators was not sufficient to justify a guilty verdict. As a result, the Court vacated the verdict against the former Governor and held that any subsequent trial would have to rely on something more than what prosecutors were able to prove in McDonnell’s trial. For obvious reasons, this holding could have significant implications for the Menendez case, and it will likely be heavily relied upon by his attorneys both as an argument to preclude the trial from getting to the jury altogether, and in post-verdict motions should he be found guilty.

Menendez is up for reelection in November and there was at least some doubt about his chances if he was facing a retrial at the same time that he’d be asking voters to send him back to Washington. Over the past two months, there had been at least some speculation in New Jersey political circles about the possibility of some Democrats seeking to mount a challenge against him under those circumstances. Additionally, a poll taken at the time of the trial showed little support for Menendez’s reelection, with half of the respondents saying that they would not support such a bid. Notwithstanding that, there had not been any moves by a Democrat who would likely be prominent and strong enough to challenge the Senator getting into the race, and even the Republican side of the aisle seems bereft of credible challengers at this time. With the prospect of a retrial now effectively off the table, though, it’s unclear if any prominent Democrats will step into the race and the odds are that whoever wins the Democratic nomination for the Senate later this year will win the General Election in the fall absent some unforeseen and in the current political climate unlikely circumstances.