Despite Menendez mistrial, public corruption cases aren’t dead

Judge acquits Sen. Menendez on some charges
CNN video

Twelve jurors in New Jersey couldn’t reach consensus in the federal corruption trial of Democratic Sen. Bob Menendez after 11 weeks together, but it took only minutes for some outside the courtroom to form unanimous agreement as to why.

“Thanks to the U.S. Supreme Court for so narrowly defining bribery that convictions are almost impossible,” said Richard Painter, former White House ethics lawyer for President George W. Bush, echoing comments of many on the left and right.

“We need stronger corruption laws,” wrote the watchdog group Citizens for Responsibly and Ethics in Washington.

This knee-jerk reaction to the mistrial news in the Menendez case stems from a Supreme Court decision last year unanimously tossing out the bribery conviction of former Virginia Republican Gov. Robert McDonnell.

To be sure, the Supreme Court did not get rid of federal bribery laws. Instead, it clarified the types of acts that can form the basis for a bribery conviction.

To drill down even further, the justices said that merely “setting up a meeting, hosting an event, or calling an official” is no longer sufficient to constitute an “official act.” The politician must put his or her thumb on the scale in an ongoing proceeding, lawsuit or controversy, or “exert pressure” on someone else to do so, the justices said.

Prosecutors in Menendez’s case accused the senator of pressuring federal officials in the Obama administration and other career diplomats to help Salomon Melgen, a wealthy eye doctor, resolve a number of business disputes in return for free rides on a private yet, campaign contributions and other nice perks. Both men denied all charges.

But jurors don’t appear to have been ruminating for days on whether Menendez’s influence on others rose to an “official act” under the McDonnell legal standard. Rather, the prosecution seems to have missed the mark on the essential element they are required to prove in most criminal cases: intent.

Juror Ed Norris told a gaggle of reporters huddled outside of the courthouse that the evidence in the prosecution’s case was simply “weak” on this point. So thin, in fact, that the jury was divided 10-2 in favor of acquitting Menendez, he said.

“I don’t think the government proved it,” Norris said. “There was no smoking gun in this case.”

“When the prosecution rested, I didn’t see anything that was concrete,” Norris added. “In my gut, I was like ‘that’s all they had?'”

Randall Eliason, a law professor at George Washington University and a former federal prosecutor, said in a Washington Post op-ed that while it “may be tempting to see this as another casualty of the Supreme Court’s recent decision in the Robert F. McDonnell case,” in reality, “(t)he key issue was not official acts but proof of corrupt intent or quid pro quo.”

Defense lawyers hammered throughout the trial that Menendez and Melgen were close friends for 25 years without any corrupt intent to commit a crime — a fact Norris told reporters he found persuasive — and something Eliason suggested gave jurors “a possible alternative explanation for both Melgen’s gifts and Menendez’s efforts.”

Prosecutors may get a chance at a do-over and charge Menendez once again. But if round one was any indication, McDonnell won’t be the hurdle.