Q. As a resident of New Jersey, I have seen many different perspectives on the recent indictment of Bob Menendez. Some here in New Jersey are supporting him, while others have called for his resignation. What I want to know is what exactly the charges are against Menendez and what the government needs to prove. I’ve generally heard it referred to as a bribery case, but are there any other charges against Menendez? A. On April 1, a federal grand jury in New Jersey indicted Sen. Robert Menendez, D-N.J., and his friend Salomon Melgen on multiple counts of criminal offenses. The charges rest on Menendez’s relationship with Melgen, and, yes, mostly concern bribery. The indictment alleges Menendez and Melgen used Menendez’s “official position as a United States Senator to benefit and enrich themselves through bribery.” In short, prosecutors allege Menendez received things of value from Melgen, and, in return, Menendez took official actions for Melgen.
The things of value include trips on Melgen’s private jets, vacations, contributions to Menendez’s legal defense fund and “hundreds of thousands of dollars of campaign contributions to entities supporting Menendez’s re-election effort.”
Menendez allegedly performed several official acts for Melgen. One was influencing the visa proceedings of Melgen’s girlfriends. Another involved pressuring State Department officials to intervene to assist one of Melgen’s companies in a dispute over a multimillion-dollar contract with the Dominican Republic. And, the last involved advocating for Melgen’s interest in a Medicare billing dispute worth more than $8 million.
Much of the Menendez coverage has focused on whether the government will be able to prove the existence of a link between the benefits Melgen conferred to Menendez and any of the actions Menendez took on Melgen’s behalf. Indeed, this link is often a key issue in bribery cases. The Department of Justice’s Criminal Resource Manual recognizes its significance. “The bribery statute requires proof of an actual or intended quid pro quo: one thing given in exchange for another,” the manual states. “It specifies a bargained-for exchange, like a contract.”
But, there is one charge tacked on to the end of the indictment that does not require the government to prove any link between the benefits Menendez received and official acts he took. It charges Menendez with making false statements to the government in his annual Senate financial disclosure forms from 2007 to 2011 by failing to include any of the benefits he received from Melgen.
A false statements charge can be a useful tool for prosecutors in cases where other corruption charges are too difficult to prove. For example, in the now notorious case against former Alaska Sen. Ted Stevens, which involved allegations of hundreds of thousands of dollars in gifts to Stevens, the government alleged Stevens made false statements on his financial disclosure forms, and nothing else. A jury convicted Stevens, but after concerns arose of serious misconduct by prosecutors in that case, Attorney General Eric H. Holder Jr. dismissed the charges.
While a false statement charge may be easier to prove than bribery, it is no slam dunk. Even if the government is correct Menendez should have reported what he received from Melgen on his financial disclosure forms, the government will still have to prove he acted “knowingly and willfully” in omitting the gifts from his forms. In the Stevens case, this required a showing that the false statements were made “voluntarily and intentionally, with knowledge that one’s conduct is unlawful, and with the specific intent to do something that the law forbids.” Moreover, the judge told the Stevens jury, it meant that to find Stevens guilty, the jury had to conclude that when Stevens made false statements on his forms, he did so “consciously and with awareness and comprehension and not because of ignorance, mistake, misunderstanding or other similar reason.”
So for now, much of the focus is on the bribery charges against Menendez. And, understandably so. But, if the government is unable to prove “one thing given in exchange for another,” the case against Menendez could come down to one question. Did he lie on his financial disclosure forms?
C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to firstname.lastname@example.org. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
Correction 1:17 p.m. A previous version of this post misspelled Salomon Melgen’s name.
The 114th: CQ Roll Call’s Guide to the New Congress
Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.