Why Menendez Case Is ‘Uphill Battle’ for Prosecutors

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Sen. Bob Menendez (D-NJ) is facing a dozen counts of bribery, conspiracy, and fraud charges in a corruption probe involving one of his close friends. Testimony begins begins Wednesday, NPR reports. Federal prosecutors accuse Menendez of accepting lavish gifts in exchange for using his political influence to help friend and Florida eye doctor Salomon Melgen. Menendez denies the charges, saying he was only doing what he would do for any constituent. The indictment says Mellgen flew Menendez around on his private jet, paid for luxury trips to Paris and the Dominican Republic, and donated hundreds of thousands of dollars in political contributions that benefited Menendez. In exchange, the government says, Menendez intervened on Melgen’s behalf to sort out a shipping contract, secure immigrant visas for Melgen’s girlfriends, and settle a multimillion-dollar Medicare billing dispute involving Melgen’s ophthalmology practice.

Prosecutors face an uphill battle, thanks to a U.S. Supreme Court decision issued after the indictment. A unanimous ruling overturned the conviction of former Virginia Gov. Bob McDonnell for receiving gifts in exchange for promoting a donor’s dietary supplement. The court said McDonnell behaved distastefully by accepting gratuities from the same donor whose product he championed, but he did not perform an “official act,” so did not break the law. “For example, if a senator received a gift of a Rolex in exchange for voting a particular way on a bill pending before Congress, that would be an official act,” said former federal judge Stephen Orlofsky. Menendez’s defense team will likely claim that he never took an official action to benefit Melgen. The McDonnell case “narrows the grounds on which a bribery conviction can be obtained,” Orlofsky said, “so [prosecutors] have to prove more, for example, than setting up meetings.”

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