Bob Menendez is set to resign his Senate seat on Tuesday, following his federal corruption convictions last month. But while his political chapter as a long-serving New Jersey Democrat is closing, his legal battle may be just beginning.
It will take many months, if not years, for that legal fight to conclude. But a new motion from his defense lawyers may signal the issues that he’ll press on appeal, likely all the way to the Supreme Court. A New York federal jury found him guilty on all counts including bribery, acting as a foreign agent and obstructing justice.
That motion for a post-trial acquittal or new trial, filed in the trial court Monday, is a long shot to succeed. But in the likely event that the motion is denied and his case proceeds to sentencing on Oct. 29, it may foreshadow issues that he’ll raise to higher courts.
Contending that all of his convictions must be reversed, Menendez’s lawyers wrote to U.S. District Judge Sidney Stein in the Southern District of New York that “if sustained on such a surprisingly thin reed of evidence, these convictions will make terrible, dangerous law.” The defense lawyers argued that, despite alleging that Menendez had agreed to sell official acts for bribes, prosecutors at trial “offered no actual evidence of an agreement, just speculation masked as inference.”
Among the defense’s specific claims are that the government failed to prove a quid pro quo and that Menendez’s “speech or debate” protections for members of Congress were violated. They also argue that the evidence was otherwise insufficient and that New York was an improper venue, with the bulk of the conduct occurring in New Jersey or Washington, D.C.
A Supreme Court case frequently cited in the motion is McDonnell v. United States, where the high court in 2016 narrowed corruption-related prosecutions in siding with former Virginia Gov. Bob McDonnell. The justices have continued to side with defendants in such cases in the years since, including just this past term in Snyder v. United States, which curbed the use of federal bribery law against state and local officials, with the court holding that the law doesn’t make it a crime for officials to accept gratuities for past acts. Menendez’s lawyers briefly cite the Snyder case as well, in arguing that “because the government prosecuted Menendez on a theory of bribes, not gratuities, the evidence of after-the-fact payments cannot be used to sustain a bribery conviction absent some evidence that Senator Menendez was expecting these after-the-fact payments. No such evidence was offered.” The appellate issues may further crystallize as the case moves forward, with the next highest court being the 2nd U.S. Circuit Court of Appeals, as his lawyers work to make Menendez’s case one of the next in that line of favorable Supreme Court precedents for political corruption defendants. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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