Me­nen­dez judge ap­pears to cast doubt on pros­e­cu­tion’s case

The Trentonian (Trenton, NJ) - - NEWS - By David Porter

NE­WARK » The judge in the bribery trial of U.S. Sen. Bob Me­nen­dez and a wealthy friend de­layed rul­ing Wednesday on whether to grant the de­fense’s mo­tion to dis­miss the charges against them, but in do­ing so he ap­peared to in­di­cate he has doubts about a le­gal con­cept at the heart of the gov­ern­ment’s case.

Dur­ing more than three hours of ar­gu­ments from both sides after the pros­e­cu­tion rested, U.S. Dis­trict Judge Wil­liam Walls ex­pressed reser­va­tions that pros­e­cu­tors have shown di­rect links be­tween al­leged bribes by Florida eye doc­tor Salomon Mel­gen and meet­ings and other in­ter­ac­tions Me­nen­dez, a New Jer­sey Democrat, had with gov­ern­ment of­fi­cials, al­legedly to ad­vance Mel­gen’s busi­ness in­ter­ests.

The in­dict­ment al­leges Mel­gen plied Me­nen­dez, his long­time friend, over sev­eral years with gifts that in­cluded free flights to the Do­mini­can Repub­lic on his pri­vate jet and stays at lux­ury ho­tels.

Pros­e­cu­tors al­lege those were bribes un­der what is known as the stream of ben­e­fits the­ory, in which Mel­gen es­sen­tially kept Me­nen­dez on re­tainer and asked him for fa­vors “as op­por­tu­ni­ties arose,” ac­cord­ing to the in­dict­ment.

De­fense at­tor­neys have ar­gued that a 2016 U.S. Supreme Court rul­ing that re­versed the con­vic­tion of for­mer Repub­li­can Vir­ginia Gov. Bob McDon­nell in­val­i­dated the stream of ben­e­fits the­ory, a claim pros­e­cu­tors have de­nied.

The trial judge fo­cused on the ques­tion Wednesday, ask­ing Depart­ment of Jus­tice at­tor­ney Peter Koski, “What’s the quid for those quos?” re­fer­ring to the Latin quid pro quo, or “some­thing for some­thing.” “I’m try­ing to find out how you link the quid to the al­leged quo and vice versa,” the judge went on, adding, “I know what you’re try­ing to do, but I don’t think you can do it.”

If the judge rules the stream of ben­e­fits the­ory can’t be ap­plied to this case, it could cut out the heart of the 18-count in­dict­ment: the 12 bribery counts, six against each man; the top count, con­spir­acy to en­gage in hon­est ser­vices wire fraud, and pos­si­bly three oth­ers.

The judge in­di­cated he would leave in­tact one count of mak­ing false state­ments against Me­nen­dez for not declar­ing Mel­gen’s gifts on his Se­nate dis­clo­sure forms.

The other cen­tral is­sue raised by the Supreme Court’s McDon­nell de­ci­sion — what is con­sid­ered an of­fi­cial act by a pub­lic of­fi­cial? — was ex­pected to dom­i­nate the ar­gu­ments on Me­nen­dez’s mo­tion to dis­miss. But the judge all but told at­tor­neys he con­sid­ered Me­nen­dez’s ac­tions to fall un­der that def­i­ni­tion.

When at­tor­ney Abbe Low­ell, rep­re­sent­ing Me­nen­dez, noted that Me­nen­dez had no power to com­pel the ex­ec­u­tive branch of­fi­cials he met with to act on Mel­gen’s be­half, the judge re­sponded, “The Supreme Court is not naive col­lec­tively, and I don’t be­lieve your last point would sit well with them.

SETH WENIG — THE AS­SO­CI­ATED PRESS FILE

In this file photo, Sen. Bob Me­nen­dez ar­rives to court for his fed­eral cor­rup­tion trial in Ne­wark, N.J.

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