After spending much of his 11 years in office under legal scrutiny, but each time avoiding charges, U.S. Sen. Robert Menendez (D-N.J.) is about to endure a lengthy trial in federal court as he fights accusations of fraud and bribery.
The proceedings begin Tuesday morning in U.S. District Court in Newark, New Jersey, where a team of high-profile defense attorneys and prosecutors from the Department of Justice will select 12 jurors and four alternates who will make a decision that could shape history.
The trial, expected to last two months, puts Democrats in jeopardy of losing a critical seat in the Senate and possibly ceding ground to Republicans on a number of major policy proposals that have divided Washington.
The case will also offer a test of a key decision surrounding corruption charges and could, should Menendez be found guilty, wind its way to the U.S. Supreme Court.
Even without that backdrop, the case would still be important. That’s because federal lawmakers are hardly ever accused of the sort of crimes Menendez is accused of committing.
“It’s so rare that a member of Congress is charged with corruption,” Melanie Sloan, a former federal prosecutor and former executive director of Citizens for Responsibility and Ethics in Washington, said Monday. “This case is particularly rare because Menendez was charged with a bribe that involves a campaign contribution.”
Menendez, New Jersey’s senior senator and former chairman of the Senate Committee on Foreign Relations, will stand trial beside the man from whom he’s accused to accepting bribes: Salomon Melgen, a wealthy ophthalmologist and campaign donor from Florida.
A grand jury indictment accuses the 63-year-old Menendez of dolling out political favors for Melgen, his friend, in exchange for lavish vacations, private jet flights and campaign cash.
Among the charges is that Menendez met with then-Health and Human Services secretary Kathleen Sebelius to argue that the federal government was being unfair to Melgen, who was involved in a multi-million-dollar billing dispute with the Centers for Medicare and Medicaid Services.
Menendez is also accused of urging federal officials to pressure the Dominican Republic to honor a port security contract that would have benefited a company Melgen owned, and that he interceded with officials to get visas for then-married Melgen’s foreign girlfriends.
The son of Cuban refugees, Menendez has been involved in New Jersey politics for four decades. Since joining the Senate in 2006, he’s been targeted in at least two other criminal investigations, neither of which ever led to charges.
As he did in those investigations, Mendendez denies any wrongdoing in the case involving Melgen. His attorneys are expected to argue he did favors for a friend — and, importantly, that he did so outside of his official capacity.
His top attorney, Abbe Lowell, said his client “is in good spirits, has faith in the American system of justice, and is confident that when all the facts are heard, he will be vindicated."
"After charges were filed, Senator Menendez said in court and to the public that he was not guilty and looked forward to showing that the allegations against him were false,” Lowell, who successfully defended former U.S. Sen. John Edwards against federal charges in 2011, said in a statement. “Now, as the trial approaches, he will have the opportunity to do that so all can see.”
Melgen was found guilty in April, in a separate criminal case, of improperly billing the federal government for more than $100 million in medical insurance payments. He faces up to 20 years in prison, but sentencing has been delayed for several months, a development that had many legal observers wondering if he was preparing to cut a deal.
Sources close to the case, however, told POLITICO earlier this month the delay was due to scheduling concerns and the need for the defense to prepare for Menendez’s trial in Newark, where opening statements are scheduled for Sept. 6.
Prosecutors are expected to be spend more than a month laying out their case. Proving the broad outlines of the accusations will not be difficult: Much of what is contained in the indictment — such as the meetings, jet flights and favors done on Melgen’s behalf — is factual and won’t be disputed by defense attorneys.
The tricky part, experts say, is proving there was a bribe that took place and that both men had an agreement as to what that would mean.
“Proving the quid pro quo is difficult without a witness who will testify,” said Sloan, who now is in private practice. “Otherwise, it’s based on circumstantial evidence.”
Beyond that, the Department of Justice will also need to convince jurors the actions Menendez took on Melgen’s behalf are considered “official acts.” What that means, precisely, is a moving target after the U.S. Supreme Court last year tossed the conviction of former Virginia Gov. Robert McDonnell, who had been found guilty of doing favors for a wealthy businessman who showered him and his wife with gifts.
The ruling, which narrowed the definition of "official acts," already led an appeals court in New York to overturn the conviction of former state Assembly Speaker Sheldon Silver. Defense attorneys are sure to pursue similar arguments if the jury doesn’t come down on their side in the Menendez case, and the end result will likely have far-reaching implications.
“It’s going to further clarify the standards that were created in the McDonnell case,” Edwin Stier, a former state and federal prosecutor who worked in the U.S. Attorney’s office in New Jersey, said Monday. “And that’s really, really important because, McDonnell leaves a very, very wide area of uncertainty with respect to public official misconduct.”
Those issues are likely to be on the minds of defense attorneys and prosecutors are prospective jurors are questioned this week by District Court Judge Williams Walls.
“I think that the prosecution will just want regular people who will look at this kind of situation and know it’s wrong,” Sloan said. “Because your average person is going to think that what Melgen and Mendendez were doing is wrong. And the defense is looking for a much for sophisticated, complicated explanation.”
Should Menendez be convicted, it’s likely he will be forced to resign from the Senate. If that occurs before early next year, New Jersey Gov. Chris Christie — a Republican and supporter of President Donald Trump — will be charged with picking his replacement ahead of the 2018 midterms. Christie leaves office in January.
Menendez faces re-election in 2018 and has said he plans to run.
Given that the Senate’s efforts to repeal Obamacare failed by a single vote, the addition of a senator with loyalty to the president could have far-reaching consequences on Capitol Hill.
Christie, the former U.S. attorney for New Jersey, refuses to even entertainment the possibility that Menendez will be convicted and recently chastised a reporter who raised the possibility.
Asked Monday about Menendez, the governor lavished praise on the senator, noting they may disagree strongly on policy, but that he considers him “a very strong advocate for the state.”
“He’s about to go through a trial. And, you know, we’ll let the government bring their [charges] forward, and then he’ll present his defense a jury of his peers make the judgment,” Christie said at an unrelated press conference. “He’s entitled to the presumption of innocence, as is every person in this room.”
Matt Friedman contributed to this report