The Menendez Mistrial

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

The best move for the Trump administration after the mistrial of the corruption charges of Senator Robert Menendez would be to call it a day. The deadlocked jury is reported to have been leaning — ten to two — toward acquittal. The better part of valor would be to leave it at that and drop further proceedings. What hung the jury, we don’t know, but, by our lights, it’s just hard to divorce the Obama administration’s pursuit of Mr. Menendez from the politics of the Iran appeasement.

Mr. Menendez was chairman of the Foreign Relations Committee, when, in 2013, he emerged as a leading voice against the administration’s decision to treat with the Iranian regime. That presented a problem for Mr. Obama because the Democrats were then in control of the Senate. By early 2015, when the senator was indicted, the Democrats had lost control, but Mr. Menendez was forced to relinquish his ranking leadership.

It’s not that we’re a particular fan of any of the bills through which the Senate dealt with the Iran appeasement. The threat that Mr. Menendez represented to the appeasement movement, though, was important — underlining, as it did, the fact that opposition to what President Obama was doing was bipartisan. It’s hard not to reckon that the Democratic opponents would have had more sway had Mr. Menendez not been unhorsed.

The optics of the case are complicated by the fact that the physician who allegedly tried to bribe the senator, Salomon Melgen, was convicted of fraud charges in a separate trial. That was in April in a proceeding in federal court in Florida.The bribery case against Melgin and Mr. Menendez was being heard by the same jury, which sat in federal court at Newark. Reports are that ten of the 12 jurors were for acquittal.

One juror, according to the report in the New York Times, told reporters that the panel was nowhere near conviction. “We were deadlocked right out of the gate,” the Times quoted the juror, Edward Norris, as saying. Mr. Norris added that he “just didn’t see a smoking gun. They just didn’t prove it to us.” That doesn’t mean that the government would have no chance of winning on retrial, but it underscores the logic of taking a hint.

It would surprise us if Mr. Menendez and his physician friend would have been indicted in the first place had their case emerged after the Supreme Court removed the vagueness in the standards for conviction of bribery. The high court overturned the conviction of Governor McDonnell, one-time leader of Virginia, by finding that the bribery charges on which he’d been convicted were too broad. Mr. Menendez argued his case on principles laid down in McDonnell.

The thing to remember about McDonnell is that not only did the justices narrow the definition of what kind of acts could be counted as bribery. It’s also that the justices were unanimous. There were no dissenters. It’s not the kind of Supreme Court case that leaves room for a lot of grumbling. The facts of in Menendez strike us as more likely to be protected under McDonnell than the facts on which, say, the Second Circuit vacated the conviction of Sheldon Silver.

In Silver’s case, one of the greatest riders of the Second Circuit, Judge Jose Cabranes, wrote that the judges recognized that many would view the facts with distaste. “The question presented to us, however, is not how a jury would likely view the evidence presented by the Government. Rather, it is whether it is clear, beyond a reasonable doubt, that a rational jury, properly instructed, would have found Silver guilty.” In the case of Senator Menendez, the answer turned out to be no.


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