Gold Bars, Cash Won’t Convict Menendez But These Two Words Might

Will he get away with it?

If you believe everything the government alleges against Robert Menendez, the Democratic senator from New Jersey, but you also know how elusive federal bribery convictions can be, you are very likely asking yourself that question right now.

Menendez, the former chair of the Senate Foreign Relations Committee, was indicted a week ago by a federal grand jury in Manhattan on three counts of conspiring to commit bribery, honest services fraud, and extortion under color of official right. (As those familiar with federal criminal law well know, these three statutes forbid roughly the same type of behavior.)

This isn’t Menendez’s first brush with the Department of Justice. He escaped similar charges in 2017 after a jury deadlocked on some charges with most jurors reportedly intending to acquit him. The hung jury put to rest a five-year investigation and highlighted the difficulty of prosecuting federal bribery cases.

So, is this time different? It would seem so. Damian Williams, the well-respected US Attorney for the Southern District of New York, announced the charges Friday alleging that federal agents who searched Menendez’s residence found hundreds of thousands of dollars in cash and gold, along with a Mercedes-Benz that Menendez and his wife allegedly received in exchange for using “his power and influence” to benefit his associates.

Bribery is a two-pronged crime; it envisions a scheme that contemplates not only the receipt of money or property but also an official’s agreement to perform or facilitate an official act in exchange. That is what we mean when we say bribery requires a quid pro quo.

So, what are those official acts? The indictment alleges that Menendez pressured a senior state prosecutor to “favorably” terminate a state criminal investigation and attempted to disrupt a pending federal prosecution of one of his co-conspirators by recommending a potential candidate for the position of US Attorney for the District of New Jersey whom Menendez believed was pliable.

The indictment also claims he pressured a senior official in the Department of Agriculture to curtail the agency’s opposition to a company’s halal food monopoly. That company, incidentally, just happened to be the partial source of the money and property that Menendez and his wife received.

Many will conclude that the above-described behavior, if true, represents a severe violation of Menendez’s responsibility to the people who elected him. Do these actions meet the definition of bribery?

The best way to answer that question is to study the bribery statute’s “official act” language. According to the US Supreme Court, an official act occurs either when a public official uses their position to pressure someone else to perform an official act, or when they use their position to advise someone in carrying out an official act.

In other words, Menendez’s case will likely boil down to two words: pressure and advice.

It seems quite clear the government will argue that Menendez used pressure and advice to cause other officials to act in a way that would benefit his co-conspirators and their associates. He allegedly pressured the Agriculture Department to back off its examination of a business monopoly, reportedly pressured a New Jersey state prosecutor to close a criminal case on favorable terms, and allegedly advised the nomination of a favored US attorney candidate in order to interfere in the pending prosecution of one of his co-conspirators.

From the face of the indictment, each of these appears to allege a serious abuse of power and—more importantly—the use of one’s position to force or trick someone else into undertaking an action that would redound to someone else’s benefit.

The government’s case, however, can still unravel. Menendez can dispute the facts, or deny that his contacts amounted to intentional pressure. He can argue that forwarding a particular candidate’s name to the White House is too attenuated from an official act and therefore is not “advice.”

But these will all be difficult mountains to climb, particularly when the jury hears voluminous testimony about Menendez’s position, his associates, the information he provided them, the steps he took to (unsuccessfully) conceal his conduct, and the many items of value he received over the course of the alleged conspiracy.

If every indictment tells a story, this one is of graft and corruption. No wonder, then, that the senator’s colleagues have called for his resignation, a call that he has thus far rebuffed. Still, the government’s job is far from finished.

A world in which laws and facts can appear confusing and convoluted provides just the right opportunity for defendants like Menendez to test the government’s case and claim wrongful prosecution. Accordingly, prosecutors would be smart to continue their investigation and ramp up their preparation for a long and arduous fight. They’re going to need it.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Miriam Baer is vice dean and professor of law at Brooklyn Law School, where she teaches and writes at the intersection of corporate and criminal law.

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