Today we filed a Freedom of Information Act (FOIA) request seeking documents pertaining to the prosecution of Senator Robert Menendez (D-NJ) on bribery and related charges, and the Justice Department decision not to retry him. Menendez was tried once but that trial ended in a mistrial on November 16, 2017.
Why did the Justice Department let Menendez escape after pouring so many resources into the investigation, prosecution, and trial? One possible explanation is that political influence was exercised on Menendez’ behalf. Menendez’ lawyer is Abbe Lowell, who also represents Jared Kushner, President Trump’s son-in-law. Kushner and his family are longtime donors to Democratic politicians in New Jersey, including Menendez. Someone made the decision to save Menendez’ career and possibly keep him out of prison. We want to know who made the decision and on what basis.
The Justice Department announcement was made in a terse statement on January 31, citing a ruling a week earlier by the presiding judge, William Walls, throwing out several of the counts, suggesting that their case had been weakened.
In reality, Judge Walls’ ruling strengthened the prosecution’s hand. He left intact the counts related to the jet rides and other gifts, as well as Menendez’ deliberate failure to disclose them. More importantly, Walls affirmed the validity of the prosecution’s “stream of benefits” theory presented at the trial, on which its case rested.
Menendez’ lawyers had argued that this theory conflicted with the Supreme Court’s 2016 ruling in McDonnell that for a bribery conviction, there must be a quid pro quo, or a direct connection between a payment and an “official act.” Under the “stream of benefits” theory, Melgen’s favors were so extensive and frequent that proving such a direct connection would be unnecessary. Walls ruled, “The Court concludes that McDonnell is not antagonistic to the stream of benefits theory… a rational juror could find that Defendants entered into a quid pro quo agreement.”
Even if Menendez was acquitted on the more serious charges, it is likely that prosecutors would have gotten a conviction on Menendez’ failure to disclose his gifts to his co-defendant Salomon Melgen. A criminal conviction, even on lesser charges, would have forced Menendez to give up his seat or face calls for his expulsion.
There is precedent for obtaining investigative documents when the Justice Department fails to prosecute an elected official in the face of widespread allegations of corruption. In 2011, Citizens for Responsibilty and Ethics in Washington (CREW) filed a FOIA for documents related to the investigation of then-Rep. Alan Mollohan (D-WV). In 2014, CREW received the documents that showed Mollohan should have been indicted.
The allegations that Mollohan personally benefitted from a half-billion dollars in earmarks that he arranged for nonprofit groups in his district were based on research by NLPC and reported in series of Wall Street Journal articles by the late John Wilke.
The indictment against Menendez was based, in part, on information uncovered by Tom Anderson, Director of NLPC’s Government Integrity Project, and made public in a front-page New York Times story on January 31, 2013.
It is unlikely that we will receive the requested documents before election day, which is November 6, but whether Menendez wins or loses, it is important that the public learn the truth about the circumstances regarding the Justice Department decision not to retry him.