NEWARK — Sen. Robert Menendez (D-N.J.) declared himself back from the political dead Thursday, after his months-long bribery trial ended in a mistrial that could spell long-term difficulties for the federal government’s ability to pursue corruption cases.
Menendez, a senior lawmaker who has spent years fighting the charges, broke down crying as he addressed cheering supporters outside the courthouse.
“Today is Resurrection Day,’’ he said. “Anyone who knows me knows I never seek a fight, but I never shy away from one either. This was not a fair fight.’’
Now, Menendez said, “I’m going back to Washington to fight for the people of New Jersey.’’ And he added an ominous warning: “For those who were digging my political grave so they could jump into my seat, I know who you are and I won’t forget it.’’
The senator’s jubilation may be short-lived. Justice Department officials said they would review the case to decide whether to put him on trial again, and Senate Majority Leader Mitch McConnell (R-Ky.) called for a Senate ethics probe based on the charges in the case.
The jury of seven women and five men twice sent out notes this week saying it was deadlocked. “We cannot reach a unanimous decision,’’ the jury said in the second note just before noon Thursday. “Nor are we willing to move away from our strong convictions.”
U.S. District Judge William Walls then privately questioned the jurors, and declared a mistrial.
One of the jurors, Ed Norris, said Menendez and the doctor on trial with him, Salomon Melgen, came close to an outright acquittal, with 10 jurors believing Menendez not guilty, and only two on the panel in favor of finding him guilty.
Norris, a 49-year-old equipment operator from Morris County, said that the evidence was mostly emails and that he “didn’t see a smoking gun.’’
“I don’t think the government proved anything,’’ Norris said. “I didn’t see anything bad that he did.’’
Norris said that the panel was clearly divided from the moment deliberations began, but that it did not get angry or acrimonious.
Eventually, though, “we had enough of being deadlocked,’’ he said.
[Democrats just caught a massive break with Menendez mistrial]
A mistrial is a major victory for a senator who had to fight 18 counts of alleged corruption, and a setback for the Justice Department, whose efforts to combat public corruption have been curtailed by a recent Supreme Court decision.
Prosecutors said Menendez took gifts from Melgen, including a luxury hotel stay, private jet flights and campaign donations, in exchange for which he tried to help Melgen get U.S. visas for his girlfriends, intervened in the doctor’s $8.9 million billing dispute with Medicare, and assisted with a port security contract of the doctor’s in the Dominican Republic.
Melgen is awaiting sentencing for a previous conviction for defrauding Medicare. The two men were on trial for bribery, and Menendez was also accused of lying on government disclosure forms about his finances when he did not report gifts of flights paid for by Melgen — an omission the senator calls an accidental oversight, not a criminal lie.
Menendez’s lawyers said that the government, by charging the senator, was trying to criminalize a longtime friendship between the two men, and that there was nothing corrupt about Menendez’s acts on Melgen’s behalf or Melgen’s financial support of Menendez.
Menendez’s lawyer Abbe Lowell said the jury “could not, would not and did not return a verdict that validated any of the government’s charges. This is what happens when you put a real 25-year friendship on trial.’’
Melgen’s lawyer, Kirk Ogrosky, said he would have preferred an acquittal but added: “Maybe we’ll get that chance again.’’
A Justice Department spokeswoman said prosecutors “will carefully consider next steps in this important matter and report to the Court at the appropriate time.”
Left unclear Thursday was whether Menendez would be able to return to his perch as top Democrat on the Senate Foreign Relations Committee. Sen. Benjamin L. Cardin (Md.) has served as the panel’s ranking Democrat since Menendez’s indictment. Senior Democratic aides would not comment Thursday on any potential change in committee assignments, signaling that no final decision would be made until after the Justice Department determines whether to retry Menendez.
Barbara Van Gelder, a lawyer who specializes in white-collar crimes, predicted the department would put Menendez back on trial.
Public integrity prosecutors “would rather lose than drop a case, so they’ll probably go back and streamline their case, and next time be a lot more precise and surgical in terms of evidence,’’ she said. “Once you blur business with friendship, it’s very hard to ask the jury to untangle that. . . . The jury is looking for a concrete quid pro quo, not just a plausible quid pro quo.’’
Just before the mistrial was declared, prosecutors had asked the judge to issue a clarifying instruction to the panel, telling jurors that they could reach verdicts on individual counts in the indictment, even if they couldn’t find agreement on all the counts. The judge rejected that suggestion, saying to do so would be “going down the slippery slope of coercion.’’
The jury heard nine weeks of testimony before beginning deliberations last week, when it quickly became clear there were sharp divisions.
[First full week of testimony in Menendez trial: Emails, emotion, and a model witness]
On Nov. 9, an excused juror said she would have acquitted the senator but predicted that the trial would end in a hung jury.
Then, on Monday afternoon, the jury sent the first note saying it was unable to reach a verdict. Walls sent the panel home early that day, telling jurors to come back fresh and try again.
“I realize you are having difficulty reaching a unanimous decision, but that’s not unusual,” Walls told the panel the next morning. He said jurors should decide the case for themselves but shouldn’t hesitate to reexamine their views. “This is not reality TV; this is real life,” Walls said.
The admonition did not resolve the impasse. During a smoking break Wednesday outside the courthouse, five jurors huddled in a group chatting, while a sixth male juror stayed away, smoking alone.
Menendez’s lawyers had repeatedly asked the judge to declare a mistrial over various evidentiary and procedural issues.
[Supreme Court makes it harder to prosecute corruption]
Although mistrials are generally considered wins for defense lawyers and losses for prosecutors, the Justice Department will probably feel significant internal pressure to put the senator on trial again, because recent Supreme Court decisions have raised questions about how much legal authority prosecutors still have in pursuing corruption charges involving payments not explicitly linked to official acts.
Some legal experts have warned that a defeat for the government in the Menendez case could make prosecutors more reluctant to pursue public corruption cases in the future.
A guilty verdict, on the other hand, could have had major ramifications in the Senate, where Republicans hold a narrow majority. If Menendez had been convicted, there would probably have been pressure on him to resign, or for fellow senators to expel him. If his seat had become vacant before mid-January, New Jersey Gov. Chris Christie (R) would have been able to appoint his successor, probably turning a Democratic seat Republican until a November 2018 midterm election. But it was not clear that even if Menendez had been convicted, he and his fellow Democrats would have gone along with his ouster.
[Original indictment of Sen. Robert Menendez and Salomon Melgen]
To try to prove their case, prosecutors called pilots, government officials and even a former lawmaker, former senator Tom Harkin, to the witness stand to describe how Menendez pushed and prodded officials on behalf of Melgen. At times, those witnesses delivered a mixed message to jurors.
Harkin, an Iowa Democrat, said that he had a meeting with Menendez about Melgen’s billing dispute as a “common courtesy’’ among senators — suggesting he didn’t see anything nefarious about the interaction.
The defense spent much of its time putting witnesses on the stand, including Sens. Cory Booker (D-N.J.) and Lindsey O. Graham (R-S.C.), to vouch for Menendez’s character.
The trial took place against the backdrop of last year’s Supreme Court ruling that overturned the corruption conviction of former Virginia governor Robert F. McDonnell (R).
Walls tailored his jury instructions to conform to his reading of the McDonnell ruling, which narrowed the definition of an “official act” by a politician.
“This is the first major post-McDonnell trial, and it does suggest that public corruption offenses are going to be much tougher to prove,’’ said Kelly Kramer, a lawyer specializing in white-collar work.
If Robert Menendez, the New Jersey Democratic senator who is set to go on trial for bribery and conspiracy next month, resigns or is expelled from office after August 31, the state’s governor, Republican Chris Christie, could appoint his successor. Assuming Christie would appoint a Republican (possibly himself), that would give the GOP an additional seat in a closely divided U.S. Senate where nearly every vote has been a cliff-hanger.
Should Menendez leave office by August 30, the vacancy would instead be filled in the state’s November 7 general election, since New Jersey law requires a special election to take place at the next possible general election unless that election is less than 70 days away. If Menendez leaves office after noon on January 16, the next governor—set to be elected on November 7—would be able to appoint his successor. That governor is likely to be Democrat Phil Murphy, who currently holds a commanding lead of 20 percent to 30 percent in opinion polls.
While New Jersey law states that the governor “may make a temporary appointment of a senator” even if a vacancy is filled quickly in an election, the political impact of Christie appointing a senator who would serve until November 2018 could be far greater than if he appointed a senator who served only one or two months, as would be the case if Menendez were to resign before August 30. Any senator appointed after August 30 would serve until December 2018, following the 2018 election, unless the appointing governor called a special election, a course of action that would be at the governor’s discretion. It is unclear if a new governor could call a special election even if a previous governor had already appointed a new senator. Division of Elections spokesperson Jennifer Stringfellow declined to answer the Prospect’s inquiries, citing state policies that forbid the issuing of legal advice. While New Jersey law lacks a provision that explicitly allows a special election being called after a temporary senator is appointed, there is also no provision that forbids it.
Christie could appoint himself if he so chose, an eventuality seen as likely, since he is term-limited out of the governor’s office on January 16 and, as the nation’s least-popular governor, with just a 15 percent approval rating, has limited prospects of attaining statewide office in an election. The governor’s two recent headline-generating forays were his family’s much photographed beach visit at a time when state government’s failure to pass a budget closed the beach to the general public, and his threatening a baseball fan with nachos.
A Republican appointee could prove critical to GOP efforts in the Senate, including any renewed attempts to cut the scope of health coverage and efforts to alter the tax code. One more Republican vote would have meant the bill to “repeal and replace” Obamacare would have passed. Then again, if a Republican appointee chose to run for a full term at the 2018 election or a special election, he or she might toe a moderate line. New Jersey has not elected a Republican to the Senate since 1972, and Menendez won his last re-election campaign by 20 percentage points.
Menendez’s trial is set to begin September 6, so the only set of circumstances that would lead him to resign before the August 31 cut off for a November vote on his successor would be if prosecutors offered and he accepted a plea deal. Attorneys for the senator had tried to get charges thrown out, arguing that the 2016 Supreme Court ruling in McDonnell v. United States, which set a higher bar for corruption convictions, invalidates the charges against the senator. Menendez stands accused of accepting lavish gifts and campaign funds in exchange for promoting the business interests of his friend Salomon Melgen, a Floridian physician who has already been convicted of fraud for improperly billing the government for more than $100 million in medical insurance payments. (Melgen’s sentencing has been delayed, pending Menendez’s trial, in which he is a co-defendant. While there has been speculation that he could strike a deal with prosecutors that would help win a conviction against Menendez, no indication of such an arrangement has yet surfaced.)
But Menendez contends that none of the actions he allegedly took, including pressuring then-Secretary of Health and Human Services Kathleen Sebelius on Melgen’s behalf and advocating for a Melgen-owned company with the Dominican Republic’s government, were “official acts,” a standard set in McDonnell last year. That ruling, revolving around corruption charges against Virginia’s former Republican Governor Bob McDonnell, found that the governor’s conviction was invalid because calling other public officials, setting meetings, and hosting events did not qualify as “official acts.”
U.S. District Court Judge William H. Walls opted not to rule on Menendez’s motion to have the government’s case dismissed on the grounds that his work on Melgen’s behalf did not amount to “official acts.” The judge ruled that the trial will move forward and the merits of the motion will be reconsidered after the government has presented its case. Menendez’s actions in a Senate Foreign Relations Committee hearing in 2012, in which the senator pushed officials from the departments of Commerce and State to take positions on a pending contract with the Dominican Republic that benefited one of Melgen’s companies, could be critical. Advocating for Melgen—who had given the senator lavish gifts and campaign funds—in an official setting like a committee hearing could meet a definition of “official acts” that phone calls or meetings might not.
“I don’t think the motion was frivolous … but the Supreme Court’s decision will probably need further decisions by the appellate court to pin down what ‘official action’ is,” Anthony Capozzolo, a former assistant U.S. attorney for the Eastern District of New York, says. Capozzolo was primarily assigned to the Public Integrity Section while he was a federal prosecutor.
“If he were bribed to cast a vote in a certain way, that would fall clearly under the federal bribery statute,” Capozzolo said. If Menendez exerted pressure through meetings or calls, however, that would be a gray area in the post-McDonnell era. “I’m sure the defense was not happy with the Court’s decision denying the motion, but I would be surprised if part of their strategy into the trial is not to try to shoehorn the government’s case in a way that makes it more likely that the definition of ‘official action’ becomes an issue. … I certainly think it will effect the way the defense handles witnesses during the trial because I think they’ll want a record to base a motion on if there’s a conviction.”
Prosecutors could offer Menendez a deal before the trial, and that would likely require him to step down. If such a deal were accepted by August 30, Christie would not have the chance to appoint a successor. Capozzolo says that Menendez’s trial is unlikely to last more than a month. Following any conviction, Menendez’s attorneys could re-submit a motion based on McDonnell, and Judge Walls could take a lengthy period to consider any ruling if he felt it held merit.
While most senators convicted of crimes have resigned immediately, Menendez, rather than hand the seat over to the GOP, may well prove the exception to this rule. Consideration of a post-trial motion to vacate could result in Menendez holding onto his seat for a longer period, and should the judge not vacate a guilty verdict, Menendez could still appeal to higher courts over the applicability or meaning of McDonnell.
Even if such motions were rejected, there would be no requirement for Menendez to step aside, which could open the possibility that Senate Republicans would move to expel him. By forcing a vote on Menendez’s expulsion while Christie is still governor, the GOP could not only pick up one additional colleague, but also put Democrats in a politically embarrassing situation.
Expulsions are rare. The last attempt to expel a sitting senator came in 2011, when Nevada Republican John Ensign resigned before a final vote could be taken on expulsion. The last successful expulsions were in 1861 and 1862, when numerous senators were expelled for supporting the secession of their states into the Confederacy. The only successful expulsion not related to the Civil War was that of William Blount in 1797. A Democratic-Republican from Tennessee, he was expelled for attempting to incite a military action by Creek and Cherokee tribes to assist Britain in an invasion of Spanish-controlled Florida.
Prosecutors are more likely to offer a deal if they think they could lose during the trial itself or if they believe the case could be overturned, possibly due to an appeal based on McDonnell, Capozzolo says. “They know what risks they may have,” he says. “If they view their evidence as very clear that it crosses the lines of official action … then they may be confident enough that they’re not concerned about it [an agreement].”
Even if Menendez is exonerated—or if a conviction is vacated for another reason—his trials and tribulations may not be done. He is up for re-election in 2018, and, while he has expressed an intention to run again, New Jersey Democrats may smell blood in the water. Menendez has appeared scandal-prone since right-wing media outlets paid three women to claim they had had sexual relations with Menendez in 2012, while they were underage, according to interviews with the women conducted by Dominican Republic police that revealed they had been paid off.
Menendez is one of the least-popular senators in the country, possibly due to his legal issues. A Morning Consult poll found that just 40 percent of New Jersey voters approve of his job performance, the third-lowest in the nation. Though no prominent Democrats have filed to run against Menendez in the primary, speculation has arisen that at least half a dozen key figures in the party—including four current or former House members, a former senator, a former governor, and the president of the state Senate—could challenge him.
New Jersey Governor Chris Christie speaks during a news conference in Trenton.