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MENDNDEZ IS NOT GUILTY OF BRIBERY [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-09-27

The federal bribery statute, 18 U.S.C. § 201, makes it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.” There is no question Menendez received things of value. The question is: was the receipt in exchange to performing an “official act.”

In the case of McDonnell v. United States, the Supreme Court defined “official act” as follows:

“An ‘official act’ is a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official. To qualify as an "official act," the public official must make a decision to take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event -- without more -- does not fit that definition of "official act."

So, it doesn’t matter if Menendez took $480,000 in cash and gold bars from anyone, unless the receipt of that money can be tied to an “official act” that he took — the classic “quid pro quo.”

So, let’s look at what official acts Menendez allegedly took in return for payment:

“First, MENENDEZ took actions to benefit the Government of Egypt and HANA, including by improperly pressuring an official at the U.S. Department of Agriculture (“USDA”) to seek to protect a business monopoly granted to HANA by Egypt. Second, MENENDEZ took actions seeking to disrupt a criminal investigation undertaken by the Office of the New Jersey Attorney General (“NJAG”) related to URIBE and his associates. Third, MENENDEZ recommended that the President nominate a U.S. Attorney who MENENDEZ believed he could influence with respect to DAIBES and sought to disrupt a federal criminal prosecution undertaken by the U.S. Attorney’s Office for the District of New Jersey (“USAO-DNJ”) of DAIBES.”

* * * * * * *

Nothing in there looks like the “official act” envisioned by McDonnell. He set up a meeting with a bureaucrat in the Department of Agriculture and tried to exert pressure to influence policy — but he himself had no power to make the policy — no power to do an “official act.” Next, he contacted an attorney in the state AG’s office to try to change the course of the prosecution of an associate. Again, how is that anything other than “talking to another official” that McDonnell said was not bribery. Finally, he recommended a potential US Attorney to the president, where that potential USA would exercise his prosecutorial discretion in favor of Menendez’ s associate. Again, clearly not an official act.

A U.S. Senator has no power to execute ANY official act except one: to vote on legislation — either in committee to send or not send a bill to the floor, or on the floor to approve or disapprove legislation. In other words, if he did not take money for his VOTE, then he is not guilty of bribery.

I am not saying that he’s not guilty of a crime. Tax avoidance comes to mind, if he did not declare the $480K and gold on his income taxes. His “meetings” with the NJAG may constitute obstruction of justice (which would be prosecuted under state law, as I understand this was an investigation undertaken by the state AG), depending on what he actually did and said at the meeting. The same obstruction charge may properly lie against him depending on the nature of his interference with the New Jersey USA investigation of his associate. Finally, today, MSNBC is reporting that Menendez is the subject of an FBI COINTEL investigation based on what he may have told Egyptian officials about US Embassy personnel. So, he’s not out of legal hot water. But, if the evidence at trial is the same as the allegations in his indictment, there is a good chance that he is not guilty of bribery.

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[1] Url: https://www.dailykos.com/stories/2023/9/27/2195790/-MENDNDEZ-IS-NOT-GUILTY-OF-BRIBERY

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