Bob Menendez’s prosecutors are already grappling with some tough Supreme Court precedents


“The government’s indictment lays bare remarkable evidence of public corruption,” former federal prosecutor Harry Sandick said of the Menendez case. “The only question for the government to answer is whether these amazing charges fit within the scope of the law of public corruption as the Supreme Court has defined it in recent years. In particular, were these gifts given to Menendez in exchange for ‘official acts,’ which is a narrowly defined term.”

The high court homed in on “official acts” in 2016 when it invalidated the conviction of McDonnell, a Republican who was accused of taking bribes to promote a tobacco company’s products. And earlier this year, in the case of the Cuomo aide, the court restricted the use of a federal statute that makes it a crime to deprive the public of “honest services.” That statute is among the laws Menendez is accused of violating.

Other recent Supreme Court rulings, such as a 2020 decision throwing out the convictions of two people involved in New Jersey’s “Bridgegate” scandal, have followed a similar pattern. The justices have said they are simply applying the text of the public corruption laws and seeking to avoid criminalizing ordinary activity like lobbying. Overzealous prosecutors, the court has suggested in mostly unanimous decisions, have misused those laws to target political wheeling and dealing that may be unsavory but isn’t necessarily unlawful.

In the McDonnell ruling, Chief Justice John Roberts wrote that only “official acts,” or decisive government actions, such as introducing a piece of legislation or otherwise influencing policy, could be considered part of a corruption scheme. What Roberts described as routine political favors, such as arranging a meeting or making a phone call, could not.

The issue for Menendez’s prosecutors is whether the conduct described in the indictment is legally considered “official acts” that he completed in exchange for bribes — or whether it’s more informal activity, similar to the services that elected representatives customarily provide to constituents or political allies outside official channels.

Among the steps Menendez allegedly took: contacting an official at the U.S. Department of Agriculture as he sought to preserve the ability of another co-defendant’s company to be the exclusive halal certifier for U.S. food exports to Egypt, contacting a supervisor in the New Jersey attorney general’s office in an attempt to influence two pending criminal matters and urging President Joe Biden to nominate a U.S. attorney in New Jersey whom Menendez believed he could manipulate.

Prosecutors said Menendez also conveyed to Egyptian officials, through intermediaries, that “he would approve or remove holds on foreign military financing and sales of military equipment to Egypt” by virtue of his leadership role on the Senate Foreign Relations Committee.

Prosecutors pursuing Menendez appear to have had the McDonnell decision in mind when crafting the language of the charging documents.

In the indictment, prosecutors accuse Menendez of taking bribes in exchange for “a series of official acts and breaches of official duty” and specify that he used his “power and influence” as a senator to perform favors for three businessmen indicted alongside the senator and his wife.

In describing Menendez’s contact with the USDA official, for example, prosecutors say he “pressured” the individual — a word drawn from the McDonnell decision, in which Roberts wrote that, “If an official sets up a meeting, hosts an event, or makes a phone call on a question or matter that is or could be pending before another official, that could serve as evidence of an agreement to take an official act.”

“A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter,” Roberts wrote. “And if the official agreed to exert that pressure or give that advice in exchange for a thing of value, that would be illegal.”

The Manhattan U.S. attorney’s office — and Menendez himself — appeared to immediately confront the question of whether his conduct could meet the bar set by the McDonnell decision.

“Constituent service is part of any legislator’s job — Sen. Menendez is no different,” U.S. Attorney Damian Williams noted when speaking to reporters last week.

But, he suggested, Menendez’s behavior went beyond constituent service, pointing out that Menendez detailed on his own Senate website that he wasn’t permitted to compel an agency to act in someone’s favor, influence a private business matter or get involved in a criminal case.

“We allege that behind the scenes, Sen. Menendez was doing those things for certain people — the people who were bribing him and his wife,” Williams said.

For his part, Menendez said in a statement released hours after his indictment was unsealed: “They have misrepresented the normal work of a Congressional office.”

Prosecutors also must contend with the decision the Supreme Court handed down this May in the case of Joseph Percoco, a longtime aide to Cuomo who temporarily left his government position to work as the governor’s campaign manager while accepting money to help a New York real-estate developer with a lucrative state project.

Justice Samuel Alito’s opinion for the court limited the circumstances in which private citizens can be convicted of depriving the government of “honest services.” In a concurring opinion, Justice Neil Gorsuch also suggested that the entire honest-services fraud statute should be thrown out, writing: “To this day, no one knows what ‘honest-services fraud’ encompasses.”

Menendez and his four co-defendants, including his wife, are charged with conspiracy to commit honest services fraud. Prosecutors allege they, along with the senator, “devise[d] a scheme and artifice to defraud, and to deprive the public of its intangible right to Robert Menendez’s honest services.”

Former federal public corruption prosecutors predicted the Percoco ruling would likely become a focus of pretrial litigation.

None of this, however, is likely a surprise for those supervising the Menendez case. The very office that is prosecuting Menendez brought the original case against Percoco, albeit under prior leadership. And the office’s current criminal division chief, Daniel Gitner, represented one of Percoco’s co-defendants when Gitner worked in private practice.

The U.S. attorney himself has already dealt with the fallout from the Supreme Court’s narrowing of corruption laws. Williams was a member of the prosecution team that worked on a trial heavily influenced by the McDonnell ruling: the retrial of Sheldon Silver, the once-powerful New York State Assembly speaker who was indicted on federal corruption charges.

Silver’s initial conviction, in 2015, was overturned by a federal appeals court as a result of the McDonnell decision, with the appeals court saying the district judge’s explanation of an official action was too broad.

Williams helped retry the case in 2018, and another member of that prosecution team, Tatiana Martins, said the Menendez prosecutors — and Williams in particular — surely focused closely on how to proceed successfully in light of the McDonnell ruling.

“McDonnell was something we were very sensitive to, so Damian will certainly have read this indictment and signed off on this in a very detailed way,” said Martins, who subsequently became chief of the office’s public corruption unit and is now a partner at Davis Polk & Wardwell LLP. “I’m sure McDonnell was top of mind for him.”

Silver was reconvicted, although that conviction was partially overturned.


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