By Dana DiFilippo | New Jersey Monitor
Minutes after a jury declared Sen. Bob Menendez guilty of 16 federal crimes, an indignant Menendez walked into the searing sunshine outside the federal courthouse in Manhattan Tuesday and ignored the question everyone in the media mob most wanted to know.
Would he resign?
The will-he-or-won’t-he game continues. Menendez late Wednesday denied reports that he had told allies he was planning to step down, according to CBS.
Whether he would, though, is secondary to whether he should, said a national security expert who joined the chorus calling on him to resign.
The senator’s continued service in the Senate and the powerful Senate Foreign Relations Committee presents “enormous concerns,” given that he was convicted of taking bribes to act in the interest of Egyptian and Qatari officials, said Seth Binder, director of advocacy at the Washington, D.C.-based Middle East Democracy Center. Menendez had chaired the committee but gave up his leadership position after his indictment.
“At the bare minimum, he should immediately lose access to classified information and be taken off the committee,” Binder said.
Legal observers predict busy months ahead, as the senator defiantly resists calls to resign and mounts his appeal, his Senate colleagues consider expelling him, and the Biden administration assesses the policy and national security implications of a sitting senator acting as a foreign agent.
Menendez’s conviction stunned many in the Garden State, who wondered if the Democrat would again dodge accountability. His 2017 trial on unrelated federal corruption charges ended in a mistrial after the jury deadlocked, and no charges resulted in a corruption probe of Menendez that Chris Christie undertook in 2006 when he was New Jersey’s U.S. attorney.
“Sen. Menendez has been the white whale for federal prosecutors in New Jersey for decades,” said Mitchell Epner, a former federal prosecutor in New Jersey who now works as a white-collar litigator in New York.
When federal prosecutors in New York indicted him in September, Epner said, “there was an element of ‘oh, you’ve got to be kidding — this guy got a free pass once with a hung jury. Why is he doing this again?’”
He added, “You should not be putting yourself in the position where you have to explain why your wife got a Mercedes-Benz out of the middle of no place.”
But the conviction should help restore public confidence — if not in politicians, then at least in the judicial system, said Michael Thorning, director of structural democracy at the Washington, D.C.-based Bipartisan Policy Center.
“The unfortunate thing about this case is that it is another black mark on public service and on political and governing institutions at a time when the public’s view of those institutions is fairly low, and that’s unfortunate for all of us,” Thorning said. “Given that the senator was able to avoid a prior conviction, there might have been some public sense that he had this sort of Teflon dynamic about him. But clearly that didn’t hold up here.”
His appeal — and a possible prison sentence?
Attorneys agree Menendez’s defense team has plenty they could argue on appeal.
The U.S. Supreme Court has weakened anti-corruption laws in several recent rulings, including one issued during the seventh week of Menendez’s trial.
In that opinion that split along party lines, the court’s conservative majority decreed that a federal anti-bribery statute does not cover “gratuities” given as rewards for official actions, as long as the payment comes after the action. In Menendez’s case, prosecutors weren’t able to prove exactly when the senator’s codefendants Wael Hana and Fred Daibes gave him and his wife, Nadine, some of the cash, gold bars, and other bribes investigators linked to favors, while some came after the official actions at issue in his trial.
His “official actions” will also likely drive an appeal, said Tama Beth Kudman, who heads the white-collar defense team at Kudman Trachten Aloe Posner, which is based in New York and Florida.
A constitutional protection known as the “speech and debate clause” immunizes members of Congress from liability for their legislative activity, or “official actions.” The clause was a favorite argument of Menendez’s defense attorneys throughout his trial, as they fought to bar prosecutorial evidence about what the senator did in exchange for bribes.
Menendez’s attorneys insisted throughout the case that his actions were the “normal work” of a U.S. senator. After the verdict Tuesday, the senator himself suggested that argument will fuel his appeal.
“I have never been anything but a patriot of my country and for my country. I have never ever been a foreign agent. The decision rendered by the jury today would put at risk every member of the United States Senate in terms of what they think a foreign agent would be,” he said Tuesday.
Menendez is set to return to the courthouse in Manhattan Oct. 29 for sentencing.
Under sentencing guidelines, he faces 188 to 235 months (that’s 15 to almost 20 years) behind bars, Epner said. That would be an “extraordinary sentence” for someone who’s 70, like Menendez, he added.
It’s unclear if and how soon New Jersey’s senior senator might go to prison. Judges don’t typically wait for appeals to resolve before ordering defendants to report to prison, Epner said.
Epner and Kudman think prison is likely, and they predict a sentence that will be measured in years, rather than months.
“It is offensive to most people and certainly the judiciary when people utilize their public office for improper purposes,” Kudman said. “But there have been allegations of him engaging in this kind of behavior for decades. And that is going to be very concerning to the judge.”
His Senate fate and national security
Both a committee removal and his Senate expulsion would require a full Senate vote, Thorning said. Expulsions are rare and difficult, requiring two-thirds of the chamber to agree, he added.
The Biden administration can and should take other actions both to protect national security and to warn other nations that the U.S. holds its corrupt officials accountable, Binder said.
“This was a corruption scheme where the Egyptian government was a major player in the scheme. Menendez has now been found guilty of this. And so that would mean that the Egyptian government is also guilty,” Binder said.
The Biden administration should kick the Egyptian officials implicated in the scheme out of the U.S. and press the Egyptian government to hold those officials accountable in their own courts, as unlikely as that might be, he said.
The U.S. could also double down on holding Egypt accountable for its human rights abuses, Binder said. Egypt gets $1.3 billion a year in U.S. military aid and has, historically, received the most such aid of any other country besides Israel, but U.S. senators can withhold a portion of that aid to pressure Egypt to improve its abysmal human rights record.
That policy made an appearance in the Menendez trial, because prosecutors showed the senator ghost-wrote a letter from an Egyptian official to other U.S. senators asking them to release $300 million in withheld U.S. aid.
“Holding up some of these funds is a readily available option to demonstrate there’s a cost to these actions,” Binder said.
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