Pompeo is Right; Menendez is a Crook, but How Did He Get Off?

Secretary of State Mike Pompeo accused Senator Robert Menedez (D-NJ) of orchestrating the controversy over the firing of State Department Inspector General Steve Linick.

Abbe Lowell and his client

Pompeo said. “I don’t get my ethics guidance from a man who was criminally prosecuted — case number 15-155, New Jersey Federal District Court. A man for whom his Senate colleagues, bipartisan said basically that he was taking bribes. That’s not someone who I look to for ethics guidance.”

Pompeo is right. Menendez is a crook. He should have been forced out of the Senate and gone to jail with his co-defendant Salomon Melgen. But it was the Trump Justice Department that let Menendez off the hook.

As we have recounted previously, Menendez was tried on bribery and related charges, but that trial ended in a mistrial on November 16, 2017, and the Justice Department made a decision not to retry him.

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.

Why did Justice let Menendez escape after pouring so many resources into the investigation, prosecution, and trial? One explanation would be that political influence was exercised on Menendez’ behalf. Menendez’ lawyer is Abbe Lowell, who also represented 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.

‘Stream of Benefits’

The Justice Department announcement was made in a one-sentence statement on January 31, 2018 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.”

Justice to the Rescue

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 from his co-defendant Dr. Salomon Melgen. A criminal conviction, even on lesser charges, would have forced Menendez to give up his seat or face calls for his expulsion.

Ethics Committee Punts, Too

With the criminal investigation over, the typically toothless Senate Committee resumed its investigation into violations of Senate rules. On April 26, 2018, it “severely admonished” Menendez and ordered him to repay the value of the gifts from Melgen and amend his disclosure forms. This was more good news for Menendez as the Committee could have recommended to the full Senate his Censure or expulsion.