What Happened?

In the trial of Senator Bob Menendez and Salomon Melgen, a Florida ophthalmologist, U.S. District Judge William H. Walls (D.N.J.) deferred ruling on whether a bribery conviction may rest on the “stream of benefits” theory until after the parties have had the opportunity to brief the issue.

After the prosecution rested its case, Menendez moved for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29. In the course of the argument regarding that motion, Judge Walls questioned whether the “stream of benefits” theory is still valid in light of the U.S. Supreme Court’s ruling in McDonnell v. United States.

Under the “stream of benefits” theory, the government can establish the quid pro quo required for a bribery conviction by showing that bribes were made to retain an official’s services as-needed, without linking each bribe to a specific official act. Menendez, through counsel, argued that McDonnell requires a connection of the bribe to the act, or the quid to the quo.

The government contended that McDonnell’s holding merely curbed the definition of “official act” to a formal exercise of government power that is specific and focused. It noted that “stream of benefits” appears nowhere in the opinion and suggested that the Supreme Court would not overturn a longstanding means of proving bribery without doing so explicitly.

The Take-Home

The Court’s ruling could well determine the bribery charges advance to the jury. It is unclear that the government has another theory of culpability to support the charges – at least one that has an evidentiary basis. Menendez was also indicted for making false statements on his financial disclosure forms related to the alleged bribes he received. Those counts will go forward in any event, the Court ruled.

What Happens Next?

The hearing on the Rule 29 motion will continue on Monday, October 16, 2017.