As federal prosecutors in Sen. Bob Menendez’s federal corruption trial have moved from opulence in Paris and the Dominican Republic to politics in Washington, a theme from the defense team has started to emerge: intent matters.
Testimony from three witnesses at trial this week have touched on one of the essential “official acts” of the prosecution’s case: The Democratic senator interceded in a contract dispute his friend, Dr. Salomon Melgen, had with the government of the Dominican Republic for cargo screening at the island’s ports.
Mark Wells, a State Department official, described for the jury how Menendez met with Ambassador William R. Brownfield, Assistant Secretary of State for International Narcotics & Law Enforcement Affairs, about the port screening contract in 2012 — leading the ambassador to schedule a separate meeting with the President of the Dominican Republic and convey the “intense congressional interest over the favorable resolution of this contract dispute.”
Contemporaneous emails at the time also show State Department officials saying Menendez “threatened to hold a hearing on the matter.”
The contract dispute fits into a key narrative for the prosecution, as it seeks to convince the jury that the senator used the power of his office to pressure other federal officials to help resolve business disputes in Melgen’s favor — a difficult task made even more burdensome after the Supreme Court narrowed the definition of “official acts” sufficient under federal bribery law in 2016.
But defense attorney Abbe Lowell sought to cast doubt on the prosecution’s theory Tuesday, showing that Menendez was “very concerned about drug flow and corruption” at the ports, and therefore, any calls for congressional hearings were not about trying to get his friend’s contract pushed through, but rather port security issues in general.
“If this is a case about intent, the intent has to be pursued by showing what (Menendez) was doing in the very same period,” said Lowell, hoping to persuade Judge William Walls to admit certain evidence about the Caribbean Basin Security Initiative, a State Department project that Lowell suggested would further “contextualize Sen. Menendez’s involvement in the issue.” (Walls said Lowell may seek to introduce it later during the defense’s case, but not Tuesday).
If the jury buys this defense theory, then legal experts say any one of the “official acts” the prosecutors allege might drop away if the senator wasn’t doing it for a corrupt reason.
“The defense is trying to dilute the idea that he’s doing it for corrupt reasons,” said Randall Eliason, a law professor at George Washington University and a former federal prosecutor. “To extent they can suggest that — it negates the (alleged) corrupt deal.”
“Anything that provides an alternative explanation undercuts the bribery theory,” added Eliason. “Anything that indicates Menendez was doing it for some broader policy concern is helpful, but doesn’t completely negate the idea that he did it at least, in part, for a bribe.”
