Menendez not protected from prosecution, authorities argue

By: - February 6, 2024 1:18 pm

Prosecutors said Sen. Bob Menendez ignored precedent, including from his prior trial, when arguing he could not face charges of acting as foreign agent. (Photo by Michael M. Santiago/Getty Images)

Federal prosecutors have asked a judge to allow the corruption case against Sen. Bob Menendez to proceed, arguing that when he pressured officials to further the alleged scheme, he stepped outside of constitutional protections granted to members of Congress.

Menendez last month asked the judge overseeing his corruption case to dismiss charges of bribery and acting as a foreign agent, arguing he was shielded from prosecution by the U.S. Constitution’s speech and debate clause and by a 2016 U.S. Supreme Court opinion that excluded meetings, event hosting, and calls to other public officials from the bribery statute’s definition of “official act.”

In a new filing entered Monday, federal authorities say Menendez’s alleged violations lay outside of those protections and argue the case against him should continue, charging the senator’s arguments would make members of Congress “super-citizens” with effective immunity to all criminal charges.

“Even if these claims rested on full and correct statements of the law — and they do not — they could only result in dismissal if the Court were to disregard the Indictment’s allegations, construe them in the defendants’ favor, or look beyond the Indictment to supposed, contestable, and contested facts,” the prosecutors said.

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Prosecutors allege Menendez accepted hundreds of thousands of dollars in cash, gold bars, a Mercedes Benz, and payments to a consulting firm launched by Nadine Menendez — his wife and co-defendant — in exchange for his intervention in criminal prosecutions, disbursements of military aid, and international negotiations, among other things.

In his motion to dismiss, the senator argues he cannot face charges because his alleged actions — including calls to prosecutors or urgings that federal agencies intervene in negotiations between Egypt, Sudan, and Ethiopia, among others — were not “official acts” under the definition set in McDonnell v. United States, the 2016 opinion.

But prosecutors dismiss Menendez’s argument as irrelevant because bribery charges do not require the bribe taker to hold up their end of an illicit bargain, only that they agree to do so.

“It does not matter whether the defendants are correct — and they are not — as to whether one or more of the actions that Menendez actually took was an ‘official act,’ because the Indictment also alleges that Menendez promised or agreed to take official acts. No more is required,” the government’s filing says.

Menendez’s alleged promises not to block military aid to Egypt, to pressure the U.S. Department of Agriculture to cease opposition to a halal meat certification monopoly the nation extended to IS EG Halal — a firm run by co-defendant Wael Hana and allegedly used to fund bribes — and alleged acceptance of payments to forward a Senate resolution favorable to Qatar meet that bar, prosecutors said.

They further argue the speech and debate clause does not protect Menendez from prosecution on those charges because the alleged acts were not legislative acts.

The clause in question is meant to protect the separation of powers by shielding legislators from civil and criminal charges directly stemming from their legislative duties.

Menendez has argued on the Senate floor that prosecutors are seeking to criminalize “the normal engagement of members of Congress with a foreign government,” charging his alleged actions are constitutionally protected.

Prosecutors note that while the clause guards lawmakers from liability related to legislative acts, its protections don’t extend to legislative actions taken in exchange for a bribe.

“‘Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act,’” prosecutors wrote, quoting a 1972 U.S. Supreme Court opinion in U.S. v. Brewster.

Menendez has argued that he can’t face charges for his alleged intercession in a state criminal case against an associate of co-defendant Jose Urbie because, as a federal official, state matters lay outside his purview. Prosecutors say otherwise, arguing Menendez cherry-picked precedent in building that defense while ignoring a larger body of more recent cases that reached a different conclusion — including precedent from his first corruption trial, where a judge ruled officials could face charges for accepting a bribe to pressure another into an official act the bribe taker had no power to take on their own.

“As the Government expects to demonstrate at trial, although Menendez himself lacked the formal power to decide the outcome of those state criminal matters, his position as the senior Senator from New Jersey, by ‘custom’ and as a matter of political reality, enabled him to exercise influence over state officials within New Jersey,” the prosecutors’ latest filing says.

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.