Prosecutors confront tighter definition of corruption in case

After the U.S. attorney in New York City announced corruption charges last Friday against Sen. Bob Menendez of New Jersey, the veteran Democratic lawmaker lashed back, calling the claims false and saying prosecutors had “misrepresented the normal work of congressional office.”

Menendez has said a lot more in recent days about the indictment, but his assertion last week offered a clue to the defense he may invoke, if his case goes to trial, one that other public officials facing corruption charges have used successfully.

In a series of key rulings since 2010, the U.S. Supreme Court has repeatedly narrowed the legal definition of corruption, leading to overturned convictions of prominent politicians in New York and elsewhere.

In 2016, in throwing out the conviction of Bob McDonnell, a former Republican governor of Virginia, the court said a quid pro quo scheme had to encompass more than routine courtesies like arranging meetings — the normal work Menendez invoked.

But investigators found gold bars and cash-stuffed envelopes in Menendez's home, and several legal experts interviewed this week said they believed the charges in the 39-page indictment could withstand the kinds of legal challenges that defense lawyers have successfully used in the past.

“It's true that the Supreme Court keeps narrowing the scope of what is permissible for the government to pursue,” said Rachel E. Barkow, a professor of criminal law at New York University. “But I do think that this case falls into the heartland of what's always been permissible, because as I read it, this is classic bribery.”

Daniel Richman, a professor at Columbia Law School, said, “The Supreme Court's point has always been not to criminalize normal politics.”

“Obviously, there have to be some limits to normal constituent service — and perhaps bars of gold will help draw that line,” Richman added.

But David Oscar Markus, a Miami trial lawyer who has read the indictment, cautioned against the rush to judgment of many of Menendez's critics, who he said have simply accepted the government's version.

“They're willing to convict him without ever hearing from the defense,” said Markus, who represented Andrew Gillum, a former Democratic governor candidate in Florida who faced a trial in which he was acquitted of lying to the FBI. The jury failed to reach a verdict on 18 other counts, which were later dismissed.

“The first thing that I think is important for any criminal defense lawyer to do is not to take anything in that indictment as true or at face value, and to question every single paragraph,” Markus said.

The indictment charges that Menendez, 69, who as chair of the Senate Foreign Relations Committee held sway over military sales, financing and other aid, secretly took hundreds of thousands of dollars in bribes, including gold bullion, in return for helping the government of Egypt.

The government also charged the senator's wife.