A federal judge has acquitted Democratic Sen. Robert Menendez and co-defendant Salomon Melgen on seven of the 18 counts they were tried on last year, just days after the Justice Department announced its intent to try the duo again after the jury deadlocked in the first trial.
U.S. District Court Judge William Walls, who came under criticism from Menendez also announced he will not preside over the retrial. The case has not been assigned to another judge yet, nor has a trial date been set.
Despite the judge’s decision, Menendez faces the prospect of another bribery trial just as he begins his campaign for another Senate term. And if convicted, the 64-year-old New Jersey senator could find himself behind bars instead of behind a desk on the Senate floor.
Four of the acquitted counts applied just to Menendez, who will now face nine counts, while three applied to Melgen, who will face eight. Melgen, a Florida eye doctor, also faces decades in prison for a Medicare fraud conviction.
Menende’z lead defense attorney, Abbe Lowell, predicted the New Jersey Democrat would be cleared if the trial actually takes place.
“The decision of the DOJ to retry the case makes even less sense than it did last week and we hope it would be reconsidered,” Lowell said in a statement. “Sen. Menendez remains as confident as ever that he will be fully vindicated—again—should the government continue to push forward.”
“The Court’s acquittal on all counts which involve monetary contributions is long overdue. There was simply never any quid pro quo agreement between my client and Senator Menendez, and the Court has now acquitted these two long-time Hispanic-American friends on all counts that involved political contributions. Hopefully, this Department of Justice will read the Court’s decision and drop the remainder of the case,” said Kirk Ogrosky, counsel to Melgen.
The Justice Department did not comment on whether Walls’ ruling would have an impact on its decision to retry Menendez.
“The Justice Department is reviewing the Court’s order and considering next steps,” said Nicole Navas Oxman, a DOJ spokeswoman.
The charges Walls dismissed involved Menendez’s alleged advocacy with top federal officials for Melgen in an $8.9 million Medicare billing dispute and a port security contract dispute in the Dominican Republic. Prosecutors alleged Menendez helped Melgen in exchange for hundreds of thousands of dollars in campaign contributions.
“A rational juror could not find that Menendez and Melgen were aware of the terms of the alleged quid quo,” Walls wrote in his opinion in acquitting on that charge.
However, Walls rejected a key argument by defense attorneys that a 2016 Supreme Court ruling throwing out the bribery conviction of former Virginia GOP Gov. Bob McDonnell would prevent DOJ from getting a bribery conviction against Menendez.
Under the “stream of benefits” theory, prosecutors sought to establish that frequent illegal gifts given by Melgen to Menendez motivated the senator to intervene on Melgen’s behalf “as needed,” not linking each gift to an official act.
“Defendants assert that the ‘stream of benefits’ theory of bribery is no longer viable in light ofMcDonnell,” Walls wrote. “The Court concludes that McDonnell is not antagonistic to the stream of benefits theory. A reading of the Supreme Court decision reveals an absence of definite conflict between the now-limited definition of official acts of a public official, and the stream of benefits theory, a governmental tool long used to prosecute bribery charges against public officials.”
Walls added: “In light of the stream of benefits theory’s continued vitality, the Court also concludes that a rational juror could find that Defendants entered into a quid pro quo agreement.”
Walls also left in place charges that Melgen allegedly provided Menendez with private jet flights and lavish vacations in exchange for political favors.
And Walls will allow a jury to hear what is widely regarded as the toughest charge for Menendez to beat: That he purposefully filed false financial disclosure statements that left off Melgen’s gifts.
The acquittal on the seven counts could substantially shorten Menendez and Melgen’s retrial. The last trial ran two and a half months. At the end, juror Ed Norris said 10 of the 12 jurors wanted to acquit the senator.
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