NEWARK — Federal prosecutors have based much of their criminal case against U.S. Sen. Robert Menendez on allegations that the New Jersey Democrat accepted lavish gifts from a wealthy friend in exchange for helping him with government matters years later.
On Wednesday, the federal judge presiding over the pair’s criminal trial heard oral arguments on whether the bribery charges should be thrown out.
At the heart of defense attorneys’ arguments to get charges dismissed is “stream of benefits,” a legal theory that says bribery can come in the form of a so-called retainer where someone provides gifts or money over a period of time with the expectation of getting something from the recipient in return some time in the future.
Defense attorneys allege the legal validity of the “stream of benefits” theory was put into question by a recent U.S. Supreme Court ruling.
“If I were the prosecution team right now, I wouldn’t be sleeping,” said Lee Vartan, a former federal and state prosecutor who is now a white-collar defense attorney at Chiesa, Shahinian & Giantomasi.
Prosecutors have based their case on the stream of benefits theory by alleging the Florida ophthalmologist, Salomon Melgen, plied Menendez with gifts of lavish hotel rooms, stays at his home in the Dominican Republic, free plane rides and hefty campaign contributions between 2006 and 2013.
In return for those gifts, prosecutors contend, Menendez helped Melgen’s foreign girlfriends get visas to the United States, intervened in an $8.9 million Medicare dispute and tried to resolve Melgen’s port security contract dispute with the government of the Dominican Republic.
Defense attorneys have insisted Melgen’s gifts and Menendez’s actions were based on their friendship of more than two decades. After prosecutors rested their case Wednesday against the pair, defense attorneys argued charges against the men should be dismissed.
Both sides presented their arguments on Wednesday for more than three hours before U.S. District Judge William Walls, who said he wanted them to further explore the issue of stream of benefits, which had been a viable theory until the recent U.S. Supreme Court ruling overturning the conviction of former Virginia governor Robert McDonnell threw that into question.
“McDonnell has changed that landscape and now the stream of benefits theory is not necessarily viable,” said Vartan, who has not been in the courtroom but said he has been following the trial.
Walls acknowledged that change in landscape, directing the attorneys to prepare for additional arguments on the topic when the trial resumes Monday morning.
“The point is this: does stream of benefits still live,” Walls told told Justice Department prosecutor Peter Koski on Wednesday. “If stream of benefits still lives, then you have a chance.”
Abbe Lowell, the lead attorney on Menendez’s defense team, called the government’s case a “patchwork with no connective tissue.”
“They keep trying to find things in the universe and make the connection,” Lowell said.
He argued prosecutors couldn’t show a direct correlation between the timing of Melgen’s gifts to Menendez and the senator’s efforts to help the doctor in the Medicare dispute, the visa applications and the port security contract.
Lowell and two of Melgen’s attorneys, Kirk Ogrosky and Murad Hussain, said Melgen’s political contributions to the Democratic Party and his gifts to Menendez were too far apart in time from Menendez’s actions to be considered bribes.
But Koski argued the McDonnell decision “should not be interpreted to invalidate what is considered to be a legitimate theory of bribery.”
The challenge, he said, is that there have been no rulings addressing the validity of the “stream of benefits” theory since the Supreme Court’s decision in June 2016.
“Your honor would be the first court in the nation to invalidate stream of benefits theory of bribery while other courts recognize it,” Koski said.
That possibility didn’t seem to faze Walls, who said he wouldn’t shy away from being the first.
Melgen and Menendez, both 63, face a total of 18 counts, which includes one count of false statement against Menendez relating to his failure to report the gifts on Senate disclosure forms.
Walls said he has no plans to dismiss that charge.