Gold Bars Might Not Be Enough to Convict Bob Menendez

At a press conference replete with blown-up photographs of gold bars and cash literally stuffed into the pockets of a jacket emblazoned with the words “Senator Menendez,” the U.S. Attorney for the Southern District of New York announced the indictment of Sen. Bob Menendez (D-NJ), his wife Nadine Arslanian Menendez, and three other co-defendants.

The charges mark the second time in 10 years that Menendez has been hit with federal corruption charges. But while the Justice Department’s flashy press conference, which also revealed allegations of Nadine Menendez being paid for a “low-or-no-show job,” mortgage payments, and a Mercedes-Benz convertible, may make the case look like a slam dunk case of corruption, the reality is these cases are not as easy they may look—especially when the allegations involve a sitting member of Congress.

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White-collar cases like bribery are seldom whodunnits; rather, they are questions of whether anything was done. In a case like Menendez’s, we know from public reporting that the investigation has been ongoing for quite some time, which means that his lawyers have likely been evaluating what they know about the case and possibly even meeting with the DOJ in efforts to learn about the case and perhaps persuade the prosecutor not to bring charges.

These kinds of pre-indictment actions are a delicate dance in which both sides seek to learn as much as possible without giving too much advantage to the other side. They also offer targets of the investigation the best time to cut more generous plea bargains. So the fact that no deal emerged means both sides have taken pretty hardened positions.

The law in federal corruption cases is more challenging today for prosecutors after the U.S. Supreme Court reversed the conviction of former Virginia Gov. Bob McDonnell and his wife, Maureen. The couple were charged with allegations that they received tens of thousands of dollars in so-called loans, vacations, luxury gifts like a Rolex watch, and the loan of a Ferrari from a businessman seeking Virginia’s help in promoting a tobacco-based dietary supplement.

Sound familiar? In McDonnell’s case, prosecutors theorized that these gifts amounted to criminal corruption and although a jury agreed with the prosecution, SCOTUS did not.

Writing for a unanimous high court, Chief Justice Roberts opined that the DOJ’s definition of corruption was too broad:

“[O]ur 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…[s]etting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act’… Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”

Chief Justice Roberts’ words resonate with irony today in light of the string of recent reveals involving all the “tawdry tales” of luxury vacations and hundreds of thousands of dollars worth of undisclosed gifts and benefits to SCOTUS justices like Clarence Thomas—but the high court’s ruling nonetheless presents a steep legal incline for the Menendez prosecutors.

Put simply, it’s not enough to show that Menendez did anything for the co-defendants—friends of his wife—who gave him these goodies. The things he did must amount to “official acts,” and prosecutors will have to prove beyond a reasonable doubt to a jury that the acts were motivated by corruption arising from the lavish gifts.

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It's too early to know how strong the government’s evidence is tying the goodies provided to Menendez to alleged “official acts.” Those acts included interference with two investigations, weighing in on one co-defendant’s monopoly on supplying halal meat in the U.S., and—in perhaps the most damning of the allegations—providing non-public information to the Egyptian government about U.S. Embassy personnel and military policy issues (Menendez served as Chair of the Senate Foreign Relations Committee prior to his indictment).

But it will be an obvious defense for Menendez to claim that he was simply doing his job as a “conscientious public official”—to use Chief Justice Roberts’ words.

Menendez’s resolve to fight the case is no doubt strengthened by the fact that he fought a previous DOJ corruption case to a hung jury in 2017.

In the 2017 case, a jury hung over whether Menendez had tried to help a friend with a contract with the Dominican Republic and Medicare billing issues. The friend—also charged in that case—had allegedly provided more than $600,000 in political contributions, luxury hotel stays, and free rides on a private jet.

Following the hung jury, the DOJ at first vowed to re-try the case but gave up after the federal judge dismissed several of the charges. DOJ took five years to investigate that case and the trial took 11 weeks. Despite that, an alternative juror dismissed before deliberations began had predicted the hung jury, saying that she would have voted for acquittal.

Nor will the Menendez legal defense team make the DOJ’s task any easier. In the new case, Menendez has hired the same lawyer—Abbe Lowell—who beat the DOJ in 2017. Adding to his status as a fly in DOJ’s ointment, Lowell also currently represents Hunter Biden. Nadine Menendez has hired David Schertler, a former homicide chief in the D.C. U.S. Attorney’s Office and a lawyer whose skill in the courtroom I personally saw as a young prosecutor.

Unlike the string of error-prone defense counsel we have been used to seeing in the Trump criminal and civil cases, these attorneys will put the DOJ through their paces, are unlikely to suffer many unforced errors, and will not be gun-shy about trying a case.

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But the media’s focus on booty like gold, cash, and cars (which was encouraged by the DOJ’s show-and-tell press conference) may overlook the most serious threat to Menendez and his wife—a counterintelligence probe being undertaken by the FBI into their relationship with the Egyptian government.

Intelligence experts note how circumstances involving Menendez fit a pattern of spy recruitment by foreign intelligence. Writing for Just Security, Asha Rangappa—a senior lecturer at Yale’s Jackson Institute for Global Affairs and former FBI counterintelligence agent—and Marc Polymeropoulos—a former CIA senior intelligence service member—flag potential foreign policy issues that may arise between the U.S. and Egypt over the case.

These national security implications, plus the fact that Menendez is the highest-ranking Latino member of Congress, make this case an extremely high-stakes one for the DOJ—and one in which it will take a lot more than gold bars and bling to win.

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