A legal obstacle that helped get New Jersey Sen. Bob Menendez off the hook in his 2015 federal corruption case will factor into the new criminal charges he faces in an indictment unsealed in Manhattan Friday.
The veteran Democrat, 69, was previously accused by New Jersey federal prosecutors of using his influence to help Florida eye doctor and pal Salomon Melgen in exchange for gifts and campaign contributions – but the case ended in a mistrial in 2017 when the jury deadlocked.
New Jersey federal Judge William Walls then tossed seven of the 18 charges Menendez faced, finding that prosecutors had failed to show an explicit quid pro quo with Melgen. And the remaining charges were then dropped by prosecutors, who said they wouldn’t retry the case.
Walls, in his decision, said he was guided by a 2016 US Supreme Court ruling in the case against ex-Virginia Gov. Bob McDonnell that narrowed the definition of an “official action” – making bribery and corruption cases against elected officials harder to prove.
Under the McDonnell ruling, certain political favors — such as taking a meeting, talking to another official or organizing an event — no longer constitute official acts.
Former federal prosecutor Brian Whisler, of firm Baker McKenzie, said Manhattan federal prosecutors – who have charged Menendez with a three-count indictment – would be cognizant of the McDonnell ruling and of the prior mistrial.
“The prosecutors were very mindful of the fact that if they were going to take a second crack at a sitting US senator it would really need to be a headshot,” said Whisler, who represented witnesses who testified at McDonnell’s trial.
“Even though it’s not legally relevant that he was previously charged in a separate and distinct case for which he was mistried – everyone would know that it would somehow find its way into the proceedings and the average juror would expect that this case would be very viable.”
The new indictment, unrelated to the prior New Jersey case, alleges that Menendez and his wife Nadine pocketed hundreds of thousands of dollars in bribes – including gold bars, a Mercedes-Benz convertible and home furnishings – in exchange for helping the government of Egypt and three Garden State businessmen.
During the six-week 2017 trial, prosecutors argued that Menendez set up meetings with homeland security and health officials as Melgen, an ophthalmologist from the Sunshine State, made campaign donations and flew him on his private jet to his villa in the Dominican Republic.
The duo’s defense attorneys’ argued that the gifts and favors arose from Melgen and Menendez’s 20-year friendship, not from a corrupt agreement.
Whisler said the Manhattan indictment differs from the previous case in that it involves Egyptian government officials and “the evidence appears to be of a different more conspicuous quality.”
The lawyer also said the fact that the indictment was very detailed “was by design.”
“Prosecutors want to show the world they really think they have a strong case,” Whisler said. “We also hope the co-defendants will see that for what it is and will be inclined to cooperate.”
In the wake of the McDonnell ruling, several other corruption convictions have been overturned including for the former New York state Senate Majority Leader Dean Skelos and his son, Adam Skelos in 2017.
Ex-Gov. Andrew Cuomo pal and top aide Joe Percoco also had his fraud conviction overturned in May due to McDonnell.
In a statement Friday, Menendez said he’d “been falsely accused” and said for years people have been trying to “dig my political grave,” blasting the cases against him as “the excesses of these prosecutors.”
He said what prosecutors have painted as corruption is merely part of “the normal work of a Congressional office.”