In a surprising development, the Department of Justice announced yesterday that it would drop corruption charges against Senator Robert Menendez (D-NJ). The move comes just weeks after the Government declared its intent to retry the case, after the Senator’s first trial concluded in a November 2017 mistrial. Shortly after that announcement, the federal district court presiding over the proceedings issued a ruling dismissing seven of the eighteen counts in the superseding indictment. The published opinion repeatedly employed the famous words of Gertrude Stein, noting with respect to several of the tossed charges, “There is no there there.”
While the court’s opinion would have allowed eleven counts to proceed toward trial, the Government’s announcement yesterday recognized the impact that the decision had on the strength of its case as a whole, noting that it was moving to dismiss the superseding indictment as a result of the court’s earlier opinion. Such requests by the Government are almost always granted, and Menendez and his co-defendant Salomon Melgen quickly responded in court filings that they had no objection to the Government’s request, asking that the charges against them, originally brought in early 2015, be dismissed with prejudice. Menendez took to Twitter yesterday to thank the Department of Justice for “reevaluating its case and com[ing] to the appropriate conclusion.”
The Government’s one-page motion to dismiss the superseding indictment does not expressly state the reasons why it decided not to take Senator Menendez’s case to trial a second time on the remaining charges. But other recent, high-profile political corruption cases have demonstrated an unwillingness on the courts’ part to allow for expansive interpretations of criminal statutes the Government has employed to prosecute alleged political corruption. We wrote about one such case – that of Sheldon Silver, the former Speaker of the New York State Assembly – in which the Second Circuit last summer vacated Mr. Silver’s conviction, concluding that the district court’s jury instructions in that case regarding the “official act” element of honest services fraud and Hobbs Act Extortion were erroneous in light of the Supreme Court’s landmark decision in McDonnell v. United States, 136 S.Ct. 2355 (2016). And while Mr. Menendez escaped re-trial, Mr. Silver has not, and is scheduled to return for another trial in April 2018.
While the Menendez court would have allowed some charges to proceed notwithstanding McDonnell, the constitutional and practical difficulties in presenting and proving such a case likely played a role in the decision not to re-try Senator Menendez. As our colleague Arianna Goodman has written elsewhere regarding her and Montgomery McCracken partner Mark Sheppard’s successful representation of a Pennsylvania State Senator who was acquitted of bribery and other charges, when such prosecutions approach the line of “criminalization of politics as usual,” courts have become increasingly reluctant to read the pertinent bribery statues as broadly as the Government has urged.
The Menendez case is thus another setback to the Government’s prosecution of perceived public corruption offenses in the wake cases like McDonnell and the Supreme Court’s earlier decision in Skilling v. United States, 561 U.S. 358 (2010), which set in motion a sea change in corruption law by severely limiting the reach of the federal honest services fraud statute.