Judge in Menendez case casts doubt on key prosecution theory

NEWARK — Hours after the prosecution rested in its federal corruption case against U.S. Sen. Robert Menendez and co-defendant Salomon Melgen, Judge William Walls cast doubt Wednesday on a theory that’s central to its case.

At the same time, Walls said he will allow the jury to decide whether Menendez filed false reports with the U.S. Senate, a charge seen by many as the toughest to beat.

At issue is the “stream of benefits” theory of bribery, which defense attorneys argue was invalidated by the U.S. Supreme Court’s 2016 decision overturning the corruption conviction of former Virginia Gov. Bob McDonnell. The high court’s unanimous ruling narrowed the type of conduct that can be used to prosecute for corruption.

“I’m particularly concerned about stream of benefits. And we’ll see,” Walls told prosecutor Peter Koski after about three hours of arguments Wednesday afternoon. The arguments were held outside of jury’s presence.

If Walls rules the theory was invalidated in the McDonnell ruling, he could decide to toss out much of the case before it reaches the jury.

Prosecutors allege Melgen, a wealthy Florida eye doctor, plied Menendez, a Democrat and New Jersey’s senior senator, with political contributions, private jet flights and lavish vacations in exchange for various political favors. Those favors, prosecutors say, included helping Melgen secure visas for former girlfriends, interceding on his behalf in a $9 million Medicare dispute and pressuring officials to get the Dominican Republic to honor a port security contract held by a company Melgen owned.

Prosecutors have not directly linked any individual Melgen gifts to a specific Menendez act, which were often separated by months and even years. Instead, prosecutors say, Melgen used Menendez for his power, and Menendez used Melgen for his money.

Two months before the trial began, defense lawyers argued in a motion to dismiss the case that prosecutors were using the stream of benefits theory.

“The Supreme Court’s unanimous opinion in McDonnell leaves no room for the stream of benefits theory itself, where the quo is some unspecified act, not yet identified at the time of the allegedly corrupt exchange, that will emerge in the future as ‘opportunities’ arise,” Menendez’s lawyers wrote. “Instead, it is now clear that the government must first prove ‘the public official agreed to perform an ‘official act’ at the time of the alleged quid pro quo,’ and that ‘official act’ ‘must be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.”

Although Walls didn’t rule for the defense, he seemed to sympathize with its argument.

“I frankly don’t think that McDonnell will allow that,” Walls said of the theory.

Koski, the lead prosecutor, argued that the Supreme Court never said it invalidated the theory.

“I find it hard to believe, your honor, that the Supreme Court would issue a unanimous opinion invalidating the widely recognized stream of benefits theory without actually saying so,” he said.

Walls, however, noted that the decision found fault with the McDonnell judge’s instructions to the jury and quoted a passage that read “the instructions did not inform the jury that the ‘question, matter, cause, suit, proceeding or controversy’ must be more specific and focused than a broad policy objective.”

“The point is this: Does stream of benefits still live?” Walls told Koski. “If stream of benefits still lives, then you’ve got a chance.”

Koski told Walls he would be the first court to invalidate a long-held legal theory. Walls said that didn’t bother him.

“I’m the first one because I think I’m the only case being tried now that may involve that,” he said.

It wasn’t all gloom for the prosecution. Walls appeared to slap down a contention by the defense that the McDonnell decision had so limited the definition of what counts as an “official act” by a public official that Menendez’s actions — arranging meetings, calling and writing letters to officials he had no direct power over — didn’t count.

Walls also said he would not toss charges that Menendez filed false information by not listing his private jet flights and hotel stays provided by Melgen on his U.S. Senate financial disclosure forms.

That charge, though less serious than the bribery allegations, has also been singled out by legal experts as a particularly tough charge for Menendez to defend against.

“You’ve won on that. That will go to the jury,” Walls told Koski.

Despite indicating where he would rule on some matters, Walls issued no formal ruling. He asked the attorneys to submit written arguments to the court, and said he’d continue oral arguments when the trial reconvenes on Monday.

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