'Friendship' defense, lack of 'smoking gun' aided Menendez
By DAVID PORTER
Nov. 17, 2017
NEWARK, N.J. (AP) — Jurors in the bribery trial of Sen. Bob Menendez didn't think the government's case was strong enough to convict the New Jersey Democrat and a wealthy friend, according to interviews with members of the panel after a mistrial was declared Thursday.
Jurors said most of the group was for acquittal but that a few holdouts forced a hung jury, giving Menendez a reprieve from the criminal charges for now.
He is up for re-election next year, and it is not yet clear if the government wants to pursue a retrial.
Here's a look at some of the factors that contributed to the jury's deadlock:
Attorneys for both Menendez and co-defendant Salomon Melgen never let jurors forget about the pair's close friendship, which began in the 1990s. Menendez attorney Abbe Lowell began his opening argument on Sept. 6 discussing that friendship, and in his closing argument last week mentioned the words "friend," ''friends" and "friendship" more than 80 times.
The defense also showed jurors evidence that Menendez made numerous trips to Melgen's Dominican Republic resort on his own dime, seeking to blunt charges that other trips paid for by Melgen were part of the alleged bribery scheme.
Prosecutor Peter Koski reminded jurors that friends can engage in bribery — a fact bolstered by the judge's instructions that gifts "given both out of friendship and a corrupt intent" can be illegal. But not enough jurors bought it.
"They are friends," said Evelyn Arroyo-Maultsby, a juror who was excused last week for a pre-arranged vacation. "If I was rich and if I had a lot of money and I want to take my friend somewhere, why can't I?"
NO 'SMOKING GUN'
The prosecution's case was built around connecting gifts from Melgen — including private jet flights and trips to luxury hotels in Punta Cana and Paris — plus his contributions to Democratic political action committees to actions by Menendez. These included communications between the Democrat and his staff, and accounts of meetings with executive branch officials including then-Health and Human Services Secretary Kathleen Sebelius.
What the case lacked was a blockbuster witness or "smoking gun" email that crystallized the alleged scheme. Instead, jurors were left to draw conclusions about meaning and intent from emails, flight logs and pictures of Melgen's Dominican resort and a $1,500-a-night Paris hotel.
Some of the government officials who met or spoke to Menendez characterized him as becoming angry or exasperated when his efforts were rebuffed, but defense attorneys were able to focus on the fact that Melgen's name wasn't brought up at the meetings.
The trial was the first federal public corruption trial since 2016's U.S. Supreme Court ruling that overturned the conviction of former Virginia Gov. Bob McDonnell. Courts have used it retroactively to overturn the convictions of at least three other politicians including former Democratic Louisiana Rep. William Jefferson.
The McDonnell ruling tightened the definition of what qualifies as an "official act" by a public official in a bribery scheme, and U.S. District Judge William Walls' instruction to the Menendez jury used language taken directly from the McDonnell ruling.
"We didn't see it," juror Ed Norris said Thursday when asked if he and his fellow jurors felt Menendez's actions crossed the line. "I don't think there was anything bad that he did."
Trial observers were treated to a high level of lawyering on both sides and plenty of wrangling between the attorneys and Walls over the finer points of the law and the rules of evidence.
While frequently entertaining, the exchanges provided constant reminders that the defense, led by Lowell — a Washington heavy hitter who also represents President Donald Trump's son-in-law and senior adviser Jared Kushner — wasn't going to let any move by the prosecution slip by without a challenge.
The Department of Justice, which began the investigation of Menendez and Melgen about five years ago, said Thursday it was considering whether to retry them. The Senate's Ethics Committee said Thursday it is resuming an inquiry into Menendez that started in 2012 and was deferred a year later because of the criminal investigation.
Menendez is expected to officially announce he will seek re-election.
Daniel R. Alonso, a former federal prosecutor in Brooklyn and currently managing director at global compliance firm Exiger, said that while a retrial can be like "putting on a wet bathing suit" for attorneys, it can provide an opportunity as well.
"A hung jury doesn't necessarily have any kind of magical meaning for a case," Alonso said. "They happen all the time, and typically the prosecution will retry the case, and typically a retrial favors the prosecution."
Contact Porter at https://www.twitter.com/DavidPorter_AP