Experts not shocked by dropping of Menendez case

Outcome makes re-election almost a certainty and boosts his stature in the party

By Tom Bergeron
New Jersey | Jan 31, 2018 at 5:27 pm

Angelo J. Genova wasn’t surprised by the Department of Justice’s decision to drop the political corruption case against U.S. Sen. Bob Menendez.

Genova, the chairman and managing partner of Genova Burns, was only surprised by the timeline.

After U.S. District Judge William Walls threw out key components of the charges, Genova said prosecutors no longer had a viable case. A case, Genova said, which may not have been that strong.

“The inability of the government to secure a verdict in the first trial spoke volumes about the fragile nature of its case and about the viability of a second trial,” he said. “Judge Walls’ decision to dismiss a large portion of the government’s case forecasted powerfully that the appropriate thing for the government to do was to abandon the entirety of the prosecution as it has now chosen to do.

“What is curious to me is why the government announced its intention to retry the Sen. before Judge Walls announced his decision on the pending motion to dismiss the indictment.”

Prosecutors had accused Menendez of taking bribes from Dr. Salomon Melgen, a longtime friend and wealthy ophthalmologist who lives in Florida, in return for political favors.

The first case resulted in a hung jury last November. On Jan. 24, Walls threw out seven of the 18 counts against the pair because of a lack of evidence.

The decision to drop the case quickly became the talk of the legal and political world Wednesday afternoon.

Brigid Callahan Harrison, a professor of political science and law at Montclair State University, said Menendez is a big winner and that the decision will only add to what now figures to be an easy re-election this fall.

“Moving into this process before the charges were dismissed, he had essentially unanimous backing of the most important Democratic political leaders in the state,” she said. “Now that the remaining charges have been dropped, I think that he emerges victorious, not just in terms of these proceedings, but there’s a sense where he challenged the Trump administration saying, ‘Bring it on,’ and the reality is they folded.

(READ MORE from ROI-NJ on the Feds dropping charges against Menendez.)

“In a political climate like New Jersey’s, where the (Trump) administration is incredibly unpopular, that stare-down with the Trump administration increases his political cache.

“I also think that this is an important victory for Sen. Menendez moving forward, as the kind of iconic leader within the Latino community. This frees up his energy so that moving into the midterms he can, again, rally Latino voters throughout the country for his Democratic colleagues in the Senate and the House, and that increases his cache as well.”

Harrison thinks Menendez will win easily in November.

“You’d have to be on a fool’s errand to challenge Menendez,” she said. “Even if I’m a monied Republican, there would be better opportunities down the road. The changes of knocking him off are slim to none, particularly when you have other competitive races around the country.”

Harrison said the bigger loser is the department of justice.

“The move (from the DOJ) was shocking,” she said. “Particularly (the move) to refile. This 360, nobody anticipated it. Not because anyone believed there was substantial evidence, but because it had become a battle of wills rather than merely about the facts of the case.”

Here is how several other experts weighed in:

Lawrence S. Lustberg (former president of both the Association of Criminal Defense Lawyers of New Jersey and the Association of the Federal Bar of New Jersey), Gibbons P.C.:

“DOJ’s decision not to re-prosecute Sen. Menendez was the only correct decision. The government’s legal theory was deeply flawed under existing Supreme Court precedent governing corruption cases. And the facts showed not just that Sen. Menendez was ‘not guilty,’ but that he was and is actually innocent.

“Indeed, if the kind of mutual kindness and generosity that existed between old friends that was at the heart of the government’s case can be criminalized, then we are all in trouble — at least all of us who have good friends. Perhaps even more alarmingly, if a public servant is going to risk criminal prosecution and the loss of liberty by virtue of the kind of conduct that was shown here, then it will be even more difficult than it already is to get the best and brightest among us to engage in public service.”

Lee Vartan (member), Chiesa Shahinian & Giantomasi P.C.:

“The government’s decision comes as a surprise, but in some ways not as surprising as their initial decision to retry Sen. Menendez. The case was weak — no cooperator, no smoking gun e-mail or document, nothing. Another trial with the same evidence was going to yield the same result. The government finally realized that.”

Robert Mintz (former federal prosecutor), McCarter & English:

“After the court’s decision, what was left of the indictment was an array of charges involving airplane flights and hotel stays that prosecutors would have to have proven under the more controversial ‘stream of benefits’ theory. To convict on those charges, jurors would had to have accepted the government’s characterization of the relationship between Sen. Menendez and Dr. Melgen as more of a corrupt bargain than a true friendship.  Proving those charges through circumstantial evidence alone was always a tall mountain to climb for prosecutors.

“The charges against Sen. Menendez for failure to disclose the gifts survived the judge’s ruling, but that by itself was never going to be enough for the government to gain a conviction. Prosecutors never like to go to trial with a political corruption case built entirely on circumstantial evidence. With no cooperating witness, no tape recordings and no videotapes, this was always going to be a challenging case for the government. In the end, the judge’s decision to dismiss the bribery charges involving political contributions left prosecutors with an even more difficult case and less evidence with which to prove it.”