The latest indictment of Sen. Robert Menendez is full of tawdry details. Gold bars and envelopes of cash worth $500,000 were found during a raid of his home. Prosecutors say the loot, including a Mercedes-Benz convertible for his wife, was allegedly given in exchange for the powerful New Jersey Democrat to help the Egyptian government and use his influence to stop the Justice Department from prosecuting three businessmen he calls friends.
At first read, it seems the feds have nailed him after he slipped away six years ago in another case that highlighted, at the very least, stunningly unethical behavior. Despite half the Democratic caucus already calling for his resignation, Menendez Thursday told his Senate colleagues that he would again beat the charge because federal prosecutors were trying to criminalize politics.
Menendez, who has stepped aside as the influential chair of the Foreign Relations Committee, is too compromised to continue serving as a senator. The Senate Ethics Committee should do its job and commence a full review.
The only senator in history to be indicted twice and one of 12 ever to be indicted, Menendez repeatedly seems to step closer to the line of criminality than most. But unapologetic greed and unethical behavior don’t always mean there is sufficient evidence to support a corruption conviction of a public official. Menendez's first prosecution for accepting $1 million in campaign contributions from an ophthalmologist ended in a mistrial in 2017.
What Menendez knows better than most is that federal criminal statutes involving bribery and the requirement to provide honest government services have been so weakened by decisions from the U.S. Supreme Court that he has a good shot of walking away again.
WHERE'S THE 'QUO'?
The new evidence is certainly stronger. Federal prosecutors in Manhattan have set out a clear narrative outlining the "quid" — what he got and the dubious behavior he used to get it. But the "quo" part may not be so neatly wrapped up. Whether Menendez performed an "official act" in exchange for the "gifts" is an essential element in proving wrongdoing. He is expected to argue that his calls to New Jersey federal prosecutors to not charge his friends were not connected to his official duties as a U.S. senator. And that signing off on military aid to Egypt was part of his official duties as chair of the Foreign Relations Committee.
The last time federal bribery statutes were significantly revised was in 1962. For three decades, the Supreme Court has consistently made prosecution of public corruption more difficult, narrowing what can be considered bribery and dismissing theories about what exactly are the honest services a public official must render. The court is concerned about the vagueness of these laws, especially when prosecutions try to link campaign contributions or gifts to public officials with the performance of an official act. In a unanimous 2016 decision overturning the conviction of former Virginia governor Bob McDonnell, the court set a very high bar for prosecutors, finding that “an official act” must “involve a formal exercise of government power.” McDonnell took $175,000 in cash and a Rolex watch from a health supplement manufacturer who wanted the state's university to conduct research that would validate the effectiveness of its product.
TASK FOR CONGRESS
Earlier this year, the court narrowed the law yet again, throwing out the conviction of Joseph Percoco, a senior aide to former New York Gov. Andrew M. Cuomo, finding that Percoco took $35,000 from a developer who didn't want a state development agency to require him to pay union wages during the few months that Percoco was a private citizen between government jobs. In a concurring opinion, Justice Neil Gorsuch challenged Congress to pass a law that wasn't so vague, writing, "It must do more than invoke an aspirational phrase and leave it to prosecutors and judges to make things up as they go along."
In throwing out Percoco's conviction, the court formally overturned a 1982 appellate court ruling that had upheld the conviction of late Nassau County Republican leader Joseph Margiotta in a kickback scheme involving insurance brokerage fees. The justices said Margiotta, too, was a private citizen despite his powerful control over local elected officials in the county, and therefore had no obligation to deliver honest services.
It is beyond time for Congress to take up Gorsuch's admonition. It is foundational to the legal system that people should know what conduct is wrong and where the boundaries are. Courts should be vigilant about prosecutorial overreach, especially if cases are brought to punish political opponents.
Most people would agree that Menendez's brazen behavior crosses the line. But the political energy being expended to banish him might best be channeled into expanding the reach of federal anticorruption laws. Right now there must be clear proof of a corrupt intent. Congress should consider explicitly prohibiting the use of public office for private gain, making it clear that a public official selling access is criminal conduct even if an official act doesn't take place.
Corruption and self-enrichment by elected officials is corroding our democracy. Obviously, we need to make that concern clearer for them.
MEMBERS OF THE EDITORIAL BOARD are experienced journalists who offer reasoned opinions, based on facts, to encourage informed debate about the issues facing our community.