“McDonnell Creates New But Difficult Path For Menendez”
The U.S. Supreme Court’s landmark McDonnell decision last year creates an opening for U.S. Sen. Bob Menendez, D-N.J., to challenge his corruption charges over the meaning of “official acts,” but such an argument may prove difficult because the senator allegedly took on a substantial advocacy role for his benefactor, attorneys say.
Since arranging a meeting doesn’t represent an official act in and of itself, prosecutors must show what officials acts were sought via the meetings in exchange for the alleged bribes, but Menendez will likely assert that he “really wasn’t asking for anything other than just careful review,” according to Robert W. Ray, a partner with Thompson & Knight LLP.
“I just set up a meeting,” Ray, a former federal prosecutor, said of Menendez’s potential arguments. “There’s nothing wrong with that. That’s not illegal.”
The McDonnell decision draws a line between legal and illegal behavior and suggests that “criminalizing mere meetings would sweep too much innocent conduct into the criminal category,” according to Ray.
“I think that offers him not only comfort about … where the line is drawn, but also he’s gonna have the benefit of favorable jury instructions to that effect,” Ray said, referring to Menendez.