Anytime a major criminal indictment hits the news, we all ask a deceptively simple question: How strong is the case? It’s a more complicated inquiry than many people realize, since an indictment is a set of unrebutted allegations — the start of the criminal-litigation process, not the end. A prosecutor who has charged a high-profile case in a speaking indictment and cannot convince most readers that the defendant is probably guilty should find another line of work.
If you read the indictment of New Jersey senator Bob Menendez and assume that all of the allegations are materially true, he sure sounds guilty of a crime — or at least something that should be a crime. Prosecutors allege that Menendez and his wife agreed that he would perform “a series of official acts and breaches of official duty in exchange for bribes,” namely hundreds of thousands of dollars in the form of cash, gold, home-mortgage payments, and a Mercedes-Benz, among other things. Menendez and his wife were charged with three different conspiracy counts: one to commit bribery, another to commit “honest services fraud,” and a third to engage in extortion on behalf of a public official. In the first two counts, prosecutors also charged three New Jersey businessmen who are allegedly at the center of the influence-peddling scheme.
Federal prosecutors usually get convictions, but over the past 15 years or so, public-corruption cases have become singularly challenging for the Justice Department, thanks mostly to the Supreme Court’s corruption-friendly rulings and to Congress’s self-serving acquiescence to them. As a result, Menendez has more ammunition for his defense than many people seem to realize, and the path to a conviction may not be as smooth as the government would like.
The seminal case involved former Virginia governor Bob McDonnell, who was convicted on bribery charges in 2014 after he and his wife accepted $175,000 in “loans, gifts, and other benefits” from a businessman who received their help persuading state universities to perform research studies on a nutritional supplement that his company was developing. In 2016, however, the Supreme Court unanimously threw out the convictions after concluding that the trial court had used a definition of “official act” that was too broad and, in particular, that “setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’”
The dominoes have been falling ever since. Menendez himself beat a federal corruption case the year after McDonnell came down. In 2020, the Supreme Court rescued two New Jersey state officials after trial convictions in the Bridgegate scandal. Just last year, a trial judge dismissed corruption charges brought by the Southern District of New York — the same office now prosecuting Menendez — against former New York lieutenant governor Brian Benjamin. Even former Louisiana congressman William Jefferson, who was convicted on corruption charges in 2009 after $90,000 in cash was found in his freezer, went free after the McDonnell ruling. (While at the Justice Department, I assisted with the drafting of the government’s submission to the sentencing judge that opposed his release.)
These rulings involved different facts and constellations of legal issues, but all of them followed the narrow and hypertechnical approach to public-corruption law that the Supreme Court’s McDonnell decision crystallized. The jurisprudence leaves Menendez with at least two significant issues that he can and almost certainly will litigate in his defense.
The first is whether the government can establish that the alleged actions at issue on the part of Menendez were actually “official acts” within the meaning of the Supreme Court’s interpretation of the law. Under McDonnell, an “official act” must be more than something a government official happens to do. The activity in question must “involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee,” and it “must also be something specific and focused.”
If you read the Menendez indictment with this language in mind, some potential challenges become apparent. The government alleges, for instance, that Menendez “provided sensitive U.S. Government information” to the Egyptian government, apparently by giving them “non-public information” in the form of a text message about staffing at the U.S. embassy in Cairo, by disclosing “non-public information” about the status of U.S. aid to Egypt, and by ghost-writing a letter on behalf of Egyptian officials asking the U.S. Senate to release a hold on aid to Egypt.
This may all be extremely unseemly, but you can envision Menendez arguing that all of this is exempt from scrutiny under McDonnell. On their face at least, none of these actions appears to involve a formal exercise of government power along the lines contemplated by the Supreme Court or a readily identifiable breach of an official duty on the part of Menendez.
The second issue Menendez is likely to pursue is whether the government can establish that he agreed with his wife and his alleged co-conspirators to engage in a quid pro quo. On paper at least, the government appears to have Menendez and his wife dead to rights on the fact that they received things of value — many things of value, in fact — from their co-defendants, but that is the easy part. The government also has to establish that Menendez agreed to provide the alleged official acts in exchange for those things of value.
The agreement does not need to be explicit, and the indictment details a robust body of alleged circumstantial evidence on this point, including text messages from Menendez’s wife and the close timing between some of the gifts and some of the alleged official acts. There are some wrinkles, though. Prosecutors acknowledge, for instance, that Menendez’s wife and one of their co-defendants “were friends for many years,” so understanding that relationship — and, in particular, whether the lavish gifts began only after she became romantically involved with Menendez — will be important for the government to establish in a trial.
The indictment is strongest when it describes Menendez’s alleged efforts to intervene in state and federal criminal investigations on behalf of his and his wife’s co-defendants, but the particulars are curious in places. The government never alleges that Menendez asked the government to drop any investigation or prosecution, but rather that he sought “to intervene” or lobbied for prosecutors “to favorably resolve” these matters.
In one instance, prosecutors allege that a senior law-enforcement official in New Jersey ignored Menendez but that the defendant in question still ultimately received a deal — a plea agreement with a sentence of probation — that “was more favorable” than “prosecutors’ initial plea offer.” Exactly what happened is unclear, but this would seem to suggest that Menendez may have had a credible argument in favor of leniency that had nothing to do with all of the benefits that he and his wife allegedly obtained.
The possibility that these fact patterns are not as clean or unambiguous as prosecutors have publicly suggested may also have something to do with the fact that Menendez was not actually charged with bribery or extortion. As noted above, he was charged with conspiring to engage in these offenses, which requires the government to establish that he agreed to engage in the offenses but not that he actually completed the offenses.
On its face, this does not make much sense, since the government’s theory, as a straightforward factual matter, is that Menendez engaged in bribery and extortion. But one advantage of lodging conspiracy charges — sometimes known as “inchoate offenses” — in lieu of substantive offenses in a case like this is that it can make it easier for the jury to convict when elements of the substantive offenses are otherwise contestable.
You could easily be forgiven for finding many of these arguments infuriating. If the allegations in the indictment are true, Menendez engaged in conduct that, at best, is wildly unbecoming of a U.S. senator. He may very well deserve to go to prison, and he may very well end up there when all is said and done, but the path ahead for the government will not be an uncomplicated one — and the main reason has nothing to do with the Justice Department itself.
In fact, as I was reading the indictment, I was struck by how carefully Menendez seemed to manage his and his wife’s actions. In many places, you can practically see Menendez pulling out his copy of the McDonnell decision and thinking about how he can go right up to the legal line of bribery without crossing it. He may have pushed his luck, but when McDonnell came down, many good-government types warned about exactly this problem. They worried that the Court had effectively legalized a vast array of corrupt conduct and that the justices had essentially written a playbook for legal bribery.
The solution, both then and now, was for Congress to step in and amend the federal public-corruption laws. That never happened for reasons that are as unfortunate as they are obvious — namely, that members of Congress are among the principal beneficiaries when courts narrowly define public corruption.
That also makes it particularly rich to hear the chorus of indignation on Capitol Hill in the wake of the Menendez indictment. They all know that this is a problem that they could try to fix if they really wanted to. Instead, they seem content to condemn Menendez while leaving in place a deeply flawed legal regime that already saved him once and that, whatever the outcome this time around, is destined to produce more corruption and scandal.
More on the Menendez Case
- Menendez Tells Judge He’s Lost Everything, Gets 11 Years
- Bob Menendez’s Possible Legal Defense: My Wife Did It!
- Can New Jersey’s Dying Political Machine Save One Menendez?
