Judge refuses to dismiss case against Menendez

The bribery case against U.S. Senator Bob Menendez will proceed, and eventually be resolved by a jury, the trial judge ruled today. Judge William Walls rejected a motion by the defense to dismiss the charges against Menendez.

A few days ago, it looked like the defense motion would succeed. Judge Walls initially indicated a willingness to accept Menendez’s position that the prosecution’s bribery case cannot withstand the Supreme Court’s decision in the case against former Virginia Governor Bob McDonnell. However, the prosecution won the judge over through additional filings submitted over the weekend and/or the oral argument that occurred today.

The legal issue is whether, after the McDonnell decision, a public official can be prosecuted under a “stream of benefits” theory. That theory involves payments, in effect, to keep a politician on retainer, rather than paying him for specific acts. The politician agrees to perform official acts to benefit the payer as the need arises.

Judge Walls ruled that a rational jury could conclude, based on the evidence presented by the prosecution, that the defendants entered into this form of “quid-pro-quo agreement.” Such an agreement would, in the judge’s view, satisfy the standard set forth in McDonnell.

In light of the judge’s ruling, Menendez and his co-defendant, Dr. Salomon Melgen, are putting on a defense. They began by calling family members as witnesses

Menendez will have to decide whether to testify. He may well decide not to. Although the prosecution’s case has been deemed strong enough to go the jury, it reportedly included neither recordings of Menendez and Melgen nor insider witnesses who testified about what they may have promised one another.

If Menedez is convicted, New Jersey voters want him to resign. 84 percent say he should; 10 percent say he shouldn’t.

He may well decide not to. Resignation would enable Governor Chris Christie to appoint the replacement, presumably a Republican. Thus, whatever Menendez’s constituents think, Democrats will likely urge the Senator to hang in there until January 2018, when a Dem will almost certainly replace Christie as governor.

It would take two-thirds of the Senate to expel Menendez. Democrats aren’t going to provide the votes needed to get to 67.

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