Federal prosecutors are asking a judge to reject former Sen. Bob Menendez’s long shot attempt to have his guilty verdicts thrown out.
The current legal back and forth is unlikely to matter in the near term, since U.S. District Court Judge Sidney Stein would have to reverse the results of a corruption trial over which he presided.
But it previews a series of novel legal issues that could eventually send the case to the Supreme Court because of shifting legal theory around what the high court considers criminal corruption and questions about the scope of the Constitution’s “speech or debate” clause, which grants lawmakers a form of immunity.
Prosecutors from the Southern District of New York filed a 150-page reply on Thursday that portrays the legal terrain as settled and Menendez as guilty as the jury found him to be in July. Menendez and two co-defendants found guilty of bribing him are expected to be sentenced on Oct. 29. The 70-year-old could spend the rest of his life in prison. The New Jersey Democrat resigned from the Senate in August.
The evidence during a two-month corruption trial “was not merely sufficient to prove every count,” prosecutors wrote, “it was overwhelming."
Prosecutors argue that what counts as corruption is for the jury to decide, even following a 2016 Supreme Court decision that threw out corruption convictions of former Virginia Gov. Bob McDonnell and made it harder to prosecute politicians.
Prosecutors tried to slash through an argument by Menendez’s attorneys about whether the actions the senator was found guilty of taking in exchange for gold bars and piles of cash were “official acts” that can be prosecuted.
The prosecutors said courts have rejected “bright-line rules that would limit a jury’s ability to determine whether a scheme involved an official act.”
In an interview before the prosecutors’ filing, Jonathan Kravis, a former federal prosecutor who is now a partner at Munger, Tolles & Olson, predicted this would be their argument.
“What the government is going to say is that it’s for the jury to decide,” he said.
Prosecutors also argue Menendez “overstates” the scope of the “speech or debate” privilege provided by the Constitution to members of Congress. They wrote that courts should not just “accept a legislator’s say-so” about what is a legislative act protected by the privilege. Doing so, the prosecutors argued, would result in members of Congress becoming what the Supreme Court once warned against in a 1972 decision, which is “super-citizens, immune from criminal responsibility.”
Judge Stein received several letters from Menendez allies asking for mercy for the former senator, including one from Robb Watters, the managing partner of the Madison Group, who said Menendez is one of his best friends. They met in 1998, Watters said, working to help get medium range missiles for Israel.
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