The case for convicting Senator Menendez of bribery

Senator Bob Menendez's alleged participationin a multi-year corruption scheme is a perfect example of the risks to our democracy when top government officials fail to meet the most basic ethical standards. These risks are compounded by the Supreme Court's recent decisionsnarrowing the definition of bribery and official acts, which have made it almost impossible to prosecute public corruption offenses like the ones with which Menendez has been charged. However, despite those challenges, Menendez's alleged conduct is so outrageous that he will likely be convicted of bribery and public corruption.

The government's caseagainst Menendez is expansive, including multiple interrelated schemes and other people. Specifically, the government has indicted Menendez and his wife, Nadine Menendez, for accepting bribes in exchange for aiding the Egyptian government and its officials. In a seriesofindictments, the government details a multitude of evidence showing that Menendez violated 18 U.S.C. Section 201 - the statute that criminalizes bribery of public officials. For instance, Menendez and his wife allegedly received gifts worth thousands of dollars, such as a luxury car, cash, and gold bars to help Egyptian leaders maintain and advance their business, political and legal affairs. Nadine allegedly sought payments in exchange for Menendez using his power as the then-Chair of the Senate Foreign Relations Committee to ensure that Egypt could still purchase military equipment from the United States, obtain foreign military financing, and receive other foreign aid.

According to the government, co-defendants Wael Hana, Fred Daibes and Jose Uribe allegedly gave bribes to the Menendezes as part of various schemes, including one involving Hana's business IS EG Halal, the sole certifier of halal meat imported to Egypt, and another related to attempting to stop an ongoing prosecution of Daibes. Additionally, Menendez allegedly attempted to obstruct justice by writing checks back to the Egyptian government and the co-defendants in an attempt to make this bribery scheme appear as a general loan to assist his family.

The government has put together an extremely compelling case that Menendez abused his authority to help the Egyptian government and his co-defendants-and then sought any opportunity to cover his tracks. The government's case makes clear that Menendez committed numerous official acts to conspire and aid the co-defendants and the Egyptian government. But ultimately, this case will be decided on the Supreme Court's narrow case law interpreting Section 201(a)(3).

Specifically, Section 201prohibits giving or accepting anything of value to or by a public official if the thing is given "with intent to influence any official act," or if it is received by the official in return for being influenced in the performance of an official act. Under the bribery statute, an "official act means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit."

The interpretation of this section has narrowed over time, and courts now use the Supreme Court's ruling in McDonnell v. United Statesas the framework for determining whether or not a public official committed an "official act" within the meaning of the criminal bribery statute. In McDonnell,the government charged the former Governor of Virginia Bob McDonnell and his wife with honest services wire fraud and Hobbs Act extortion in a scheme to aid the CEO of Star Scientific, Inc. with getting its new prescription drug approved by the FDA in exchange for thousands of dollars in gifts and benefits. The government's case established a pressure campaign on the part of McDonnell towards other Virginia government officials, including McDonell promoting Star Scientific's product at the governor's exclusive events and McDonnell arranging meetings for the CEO of Star Scientific to encourage Virginia government officials to initiate research on his product at Virginia universities. The government's case hinged on the definition of official act from the bribery statute and whether these actions were official acts.

Despite the jury returning a guilty verdict, the Supreme Court unanimously overturnedthe McDonnells' convictions by massively narrowing the scope of what constitutes an "official act." Essentially, the Court determined that McDonnell's pressure campaign, including setting up meetings, calling other public officials or hosting private events on government property, were not a "formal exercise of the official's power," such as a vote, a veto or, or some other similar act. Under the Supreme Court's reading, a general pressure campaign to help a patron is not an official act. Rather, under McDonnell,an official act only occurs when a public official makes a decision or takes an action on a "question, matter, cause, suit, proceeding or controversy," like a lawsuit or an agency determination. And though the McDonnell court did say that pressure on a subordinate or other government official would constitute an official act, the Court specified that the pressure must befocused on convincing a specific official to commit a specific act on a specific matter to qualify.

The indictments against Menendez allege numerous instances where Menendez accepted bribes for personal gain at the expense of his responsibility to uphold the law. And while the Supreme Court has set an extremely high bar for showing that Menendez conducted an "official act" under 18 U.S.C. Section 201, it seems likely that most of Menendez's actions should qualify as official actions under the bribery statute. An analysis of some of the conduct Menendez is alleged to have committeddrives this point home:

Menendez allegedly called a high-level USDA official and insisted that the USDA stop opposing IS EG Halal's status as the country's sole certifier of halal meat exports to Egypt, despite the USDA finding the Egyptian business had a detrimental monopoly against U.S. interests.

This likely constitutes an official act under McDonnell. First, the question of IS EG's halal monopoly is likely a matter, proceeding, or controversy, within the meaning of Section 201 (a)(3), and second, Menendez exercised his authority as a senator to pressure the USDA official to stop the agency's investigation of and interference with IS EG's monopoly. As stated by the Supreme Court in McDonnell, a public official commits an "official act" when that official uses their "official position to exert pressure on another official to perform an 'official act.'" Unlike in McDonnell, where the governor applied pressure on officials without referring to a specific request, Menendez's alleged pressure was specifically intended to convince a government official to take a specific action on a specific matter in controversy.

Menendez allegedly decided not to recommend a candidate for US Attorney for the District of New Jersey because the candidate said that they would have to recuse themselves from Daibes' case. Menendez exercised his authority to decide which candidate for US District Attorney to recommend based on whether they would help resolve Daibes' case in the future.

This likely constitutes an official act under McDonnell. First, Menendez was exerting his power as a senator to decide whether to recommend a candidate for the US Attorney for the District of New Jersey to help protect Daibes. Second, Menendez used his official authority, namely his authority to support a specific candidate, on a specific matter, namely Daibes' prosecution. Unlike in McDonnell, where the Court found that the Governor had only organized meetings to allow the CEO of Star Scientific to promote his interests, Menendez allegedly did use his official power to make a decision on an influential matter. This incident is especially powerful evidence of an official act, as Menendez purportedly was in favor of recommending this candidate to the White House to fill the US Attorney position, but withdrew his support when the candidate said he could not participate in or influence the investigation of Daibes. As alleged in the indictment, Menendez ultimately recommended a different person as U.S. Attorney because the original candidate did not agree to assist Menendez with Daibes' case.

Menendez allegedly advised and pressured a senior state prosecutor to cease the criminal investigation and prosecution against his co-defendant Jose Uribe.

This likely constitutes an official act under McDonnell. First, Menendez allegedly exercised his official power and authority to pressure the prosecutor to handle Uribe's investigation in a favorable way. Second, the government's investigation and prosecution of Uribe is clearly a specific matter or controversy. So while the Supreme Court found that Governor McDonnell did not commit an "official act" by pressuring his subordinates to aid his benefactor in general, here Menendez allegedly used his power to pressure the prosecutor to stop the specific "focused and concrete" case against co-defendant Uribe.

While Menendez should be convicted of bribery, the Court's recent judicial interpretation of Section 201 is making even this slam dunk case more challenging.

This is precisely why the Supreme Court's current public corruption jurisprudence impedes our ability to build a better democracy. When officials like Menendez feel empowered to use their official capacities for personal favors, they are showing other leaders how to ignore the wants and needs of their voters and constituents. One of the only ways to stop this kind of corruption is to set a new standard for public official accountability. That begins with convicting Menendez, but it should also include explicitly overturning McDonnellby passing a new bipartisan billfrom Reps. Angie Craig and Nancy Mace, and overhauling our public corruption laws more generally.

CREW has called for Menendez to resignfrom office repeatedlysince his first indictment. His latest indictment spurredCREW to call for his expulsion. Menendez's alleged conduct has harmed the legitimacy of all U.S. public officials, and if he is ultimately convicted, he should bear the consequences of his actions. But the fight to protect our democracy from corruption will not end with Menendez's likely conviction. The real fight continues with the urgent need to redesign our legal structures to ensure that public officials act in our interest, rather than their own.

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