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Menendez, in push to toss charges, points to lawmaker protections

Newly unsealed court record cites Speech or Debate clause and Supreme Court case that limited federal bribery law

Sen. Bob Menendez, D-N.J., is seen in the Capitol during senate votes last month.
Sen. Bob Menendez, D-N.J., is seen in the Capitol during senate votes last month. (Tom Williams/CQ Roll Call)

Sen. Bob Menendez has told a federal judge that three bribery charges he faces should be thrown out because of the constitutional Speech or Debate protection afforded to lawmakers and a 2016 Supreme Court decision.

Menendez earlier this month filed a motion to dismiss the four charges he faces, but a memorandum that backed up that argument was filed under seal. A judge ordered that unsealed Thursday on a request from news media.

In it, Menendez argues that the indictment focuses on actions the New Jersey Democrat took as a senator, such as his work on the Foreign Relations Committee and exercising his sway on judicial nominations in his home state with the president.

“All of this conduct is constitutionally immune; none of it can form the basis for, or even be included in, a criminal indictment,” the memo states.

“That is precisely what the Speech or Debate Clause forbids, as it would obligate the Senator to justify his official (legislative) conduct as part of an (executive) criminal prosecution brought before a third co-equal branch of government (the judiciary),” the memo states.

[Menendez legal fees spike as donors disappear, FEC filing shows]

And he said the indictment also focused on unofficial actions he took he describes as “routine political courtesies or constituent services” instead of a quid pro quo for an official government action.

The memo points to the Supreme Court’s decision in 2016 that vacated the bribery conviction of former Virginia Gov. Robert McDonnell. The ruling, Menendez’s memo states, finds that “that such unofficial acts cannot support a bribery charge.”

“Put simply, the Indictment fails to navigate the legal path between McDonnell’s insistence on official conduct and the Constitution’s immunity for legislative action,” lawyers for Menenedez wrote. “Stripping out both, its (legally insufficient) unofficial acts and its (constitutionally protected) legislative ones leaves no adequate factual foundation to support the requisite quid pro quo for the Indictment’s bribery counts (Counts I-III).”

Menendez is accused of conspiring to use his position to help the Egyptian officials without registering as a foreign agent under the Foreign Agents Registration Act, which is designed to prevent covert influence by foreign principals. He is also alleged to have, along with his wife Nadine Menendez, accepted hundreds of thousands of dollars of bribes from businessmen in exchange for “using his power and influence, to protect and to enrich those businessmen and to benefit the government of Egypt.”

The senator also seeks to dismiss the fourth charge, accusing him of acting as a foreign agent for the Egyptian government, arguing in part that the charge “directly criminalizes” his legislative activity.

An FBI search of Menendez’s home that turned up more than $480,000 in cash and gold bars was a main component of prosecutors charging Menendez with bribery. The memo says the government used those “made-for-tabloid images of cash and gold bars for actual evidence of a bribery scheme, and manufactures a narrative based on speculation, cherry-picking, and innuendo.”

In the McDonnell ruling, the Supreme Court expressed concern about federal prosecutors overreaching on corruption charges. The opinion clarified the federal bribery and honest-services fraud laws for elected officials such as members of Congress.

The justices unanimously found that the McDonnell jury was not properly instructed on the meaning of “official act” under the federal bribery and honest-services fraud laws, which make it a felony to agree to take “official action” in exchange for money, campaign contributions or anything of value.

The court said a more limited interpretation of the term “official act” leaves room for prosecuting corruption while not subjecting officials to prosecution — without fair notice — for the most commonplace interactions with constituents.

The ruling wiped out McDonnell’s conviction and a two-year prison sentence. Federal prosecutors declined to retry him on corruption charges accusing him of accepting more than $175,000 in money, luxury goods and trips in exchange for helping a Virginia businessman.

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