“The government’s indictment lays bare remarkable evidence of public corruption,” former federal prosecutor Harry Sandick said of the Menendez case. “The only question for the government to answer is whether these amazing charges fit within the scope of the law of public corruption as the Supreme Court has defined it in recent years. In particular, were these gifts given to Menendez in exchange for ‘official acts,’ which is a narrowly defined term.
In the McDonnell ruling, Chief Justice John Roberts wrote that only “official acts,” or decisive government actions, such as introducing a piece of legislation or otherwise influencing policy, could be considered part of a corruption scheme. What Roberts described as routine political favors, such as arranging a meeting or making a phone call, could not.
Prosecutors pursuing Menendez appear to have had the McDonnell decision in mind when crafting the language of the charging documents. The Manhattan U.S. attorney’s office — and Menendez himself — appeared to immediately confront the question of whether his conduct could meet the bar set by the McDonnell decision.
“We allege that behind the scenes, Sen. Menendez was doing those things for certain people — the people who were bribing him and his wife,” Williams said. Menendez and his four co-defendants, including his wife, are charged with conspiracy to commit honest services fraud. Prosecutors allege they, along with the senator, “devise[d] a scheme and artifice to defraud, and to deprive the public of its intangible right to Robert Menendez’s honest services.”
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