Menendez Sentenced To 11 Years In Prison But The Case Is Far From Over

On January 29th former Senator Bob Menendez was sentenced to 11 years in federal prison. Prosecutors had asked for a sentence of at least 15 years for the 71 year old Menendez. His co-defendants real estate developer Fred Daibes and Egyptian American businessman Wael Hana were sentenced to 7 years and 8 years in prison respectively. Menendez was convicted in federal court last July on 16 counts including bribery, extortion, honest services wire fraud, obstruciton of justice, conspiracy and acting as an agent of Egypt. The essence of the charges against Menendez were that he and his wife received hundreds of thousands of dollar in bribes including cash, gold bars and a Mercedes- Benz automobile in return for his political influence. Menendez resigned from his position as U.S. Senator from New Jersey following his conviction.

The jury found that Menendez had pressured the USDA not to contest a meat monopoly granted by Egypt to Wael Hana, promised to intervene in criminal prosecutions in New Jersey, one of which involved Fred Daibes, and to help Egypt receive hundreds of millions of dollars in aid from the United States.

This conviction was far from Menendez’s first rodeo. In 2015 he was indicted on bribery charges related to helping a Florida physician in return for gifts and campaign contributions. A mistrial was ordered when the jury could not agree on a verdict and prosecutors later declined to retry the case. It should be noted however, that one juror said following the trial that 10 of the 12 jurors had voted to acquit Menendez.

Menendez, who had been the Chair of the Senate Foreign Relations Committee became the first senator convicted of abusing his position as a Senate committee chairman and the first senator to be convicted of serving as an illegal foreign agent while serving in public office.

Following his sentencing, echoing sentiments of President Trump, Menendez said, “President Trump is right. This process is political and corrupted to the core. I hope President Trump cleans up this cesspool and restores integrity to the system.” If this sounds like an appeal for a pardon from a President who has often attacked the Justice Department, the President and former Senator Menendez do share a mutual friend in Charles Kushner, the father of President Trump’s son-in-law, Jared Kushner which might be helpful to Menendez. On the other hand, Trump may be unlikely to pardon a senator who twice voted to convict Trump on impeachment charges during Trump’s first term in office.

While the image of cash, gold and luxury cars would appear to be substantial evidence of bribery and appear quite tawdry, they don’t necessariy under the law indicate evidence of illegal bribes. In the major Supreme Court unanimous decision of McDonnell v. United States the Court held that arranging a meeting, contacting another official, or hosting an event on its own is not sufficient to rise to the level of an “official act” for the purpose of federal bribery statutes. That case involved substantial gifts made to Robert McDonnell, the then governor of Virginia. The decision written by Chief Justice Roberts concluded “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term “official act” leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”

In a motion requesting that Menendez be released pending his appeal, Menendez’ s lawyers indicated some of the grounds for his appeal including that none of the actions taken by Menendez qualifed as official acts for purposes of federal bribery law. Another defense cited was the Speech or Debate clause defense which is a form of immunity that protects members of Congress from liability for things they may say in the course of their legislative duties.

Whether Menendez will ultimately be successful in his appeal is far from certain, but what is certain, is that this case is far from over.