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Over the past decade, it has proven surprisingly difficult to put politicians accused of corruption behind bars. The Court of Appeal reversed several convictions. Jurors also sometimes believed that officials’ actions did not meet high standards for corruption.
New Jersey Sen. Bob Menendez, indicted yesterday in a federal bribery case, is both an example of this challenge and a test of whether federal prosecutors know how to overcome it. In the senator’s last corruption trial in 2017, jurors could not understand the gifts and favors he had received from a wealthy eye doctor. Were they illegal, or were they something friends would do for each other?
Menendez, a Democrat, faces new charges for allegedly taking cash, gold bars and a Mercedes-Benz convertible. In return, prosecutors allege, he tried to obstruct the criminal case and improperly used his position on the Senate Foreign Relations Committee. According to the charges, he introduced businessmen seeking funds to members of the Qatari royal family and helped facilitate aid and arms sales to Egypt.
The prosecutor’s office hopes to finalize the charges this time as well. In today’s newsletter, why the bar for a conviction is so high and what government lawyers need to do to succeed, including the case against Mr. Menendez whose previous cases have failed. I will explain.
strict standards
The main reason for the Justice Department’s difficulties lies in the Supreme Court. In a 2016 ruling, a judge threw out a felony conviction against former Virginia Gov. Bob McDonnell. Mr. McDonnell, a Republican, used his office to help a businessman who lent him $135,000 and gifted him luxury goods and vacations.
But the judges did not consider that evidence of corruption. They said it was not enough for public officials to provide political courtesies, such as setting up meetings for friends. Politicians needed to receive tangible rewards related to official acts and government decisions. This ruling effectively narrowed the legal definition of corruption.
The McDonnell affair had an immediate impact. The following year, a federal appeals court in New York threw out the convictions of two top state officials: former Democratic state Assembly Speaker Sheldon Silver and Republican Dean Skelos, a former state senator. These reversals, and there were others, were based on the Supreme Court’s new standards. The appeals court said jurors found the defendant guilty without being informed of the new requirement of a clear quid pro quo.
To adapt
But prosecutors quickly learned their lesson. At the retrial, he used nearly identical evidence to convict both Mr. Silver and Mr. Skelos. And they solved the problem that hurt them in the first place. They focused on the specific exchange of services for payment and ensured that the jury understood the new definition imposed by McDonnell.
The case against Menendez is a different kind of test. It is based on new charges rather than the same facts as the 2017 miscarriage of justice.
The new charges detail relationships between Menendez, his wife and three New Jersey businessmen. Prosecutors say evidence shows the senator and his wife, who have both pleaded not guilty, accepted money, money and cars in exchange for influence. The couple then tried to cover up one of the bribes by making it look like a loan. The trick for prosecutors this time around is making sure Menendez falls on the right side of the narrow line drawn by the Supreme Court in McDonnell.
In the past, it has proven difficult, but it is not impossible. Last week, the same appeals court that threw out the convictions of Mr. Silver and Mr. Skelos reinstated bribery charges against another New York politician, former Democratic Lt. Gov. Brian Benjamin. The crucial difference, the appellate judges ruled, was that prosecutors had presented enough evidence of “clear quid pro quo” to reopen the case. Prosecutors allege that Mr. Benjamin diverted $50,000 in state funds to developers in exchange for donations to his campaign.
If the jury in Menendez’s upcoming trial sees the same thing, the charges against him may stick this time as well.
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