A lengthy criminal investigation that has put U.S. Sen. Bob Menendez in the crosshairs of a federal corruption indictment — and placed Democrats in peril of losing a key seat — will ultimately rest in the hands of 12 residents from New Jersey, a state he’s represented in Congress for more than two decades.
Federal prosecutors and defense attorneys will have plenty of factors to consider when they begin the final phase of jury selection this week ahead of next month’s fraud and bribery trial, including how the New Jersey residents will debate the trial’s complicated legal issues and how Menendez’s political past and future could factor into their thinking.
A pool of prospective jurors will assemble for questioning starting Tuesday that will lead to 12 jurors and four alternates for an expected two-month trial scheduled to begin Sept. 6.
Facts of the case
Prosecutors allege Menendez used his position to lobby on behalf of the business interests of Florida ophthalmologist Salomon Melgen in exchange for gifts that included vacation trips to Paris and the Dominican Republic. Melgen is on trial with him and both maintain their innocence.
Menendez has argued his actions were protected legislative activities and that there never was a quid pro quo arrangement with Melgen, whom he has described as a close friend.
“I’m looking forward to finally having the opportunity to bring this to closure, to seek vindication, and I expect that our system of justice will work and that I will be vindicated,” Menendez told The Associated Press last week.
Melgen was convicted earlier this year on Medicare fraud in a separate trial. Menendez wasn’t implicated in that case, but part of the indictment charges him with interceding on behalf of Melgen in a Medicare dispute.
That could shape the defense’s jury selection strategy, according to legal experts.
“I would think he would want to steer away from older jurors who would be potentially hurt if the government’s theory is correct, if they thought their insurance was being compromised,” said Alan Zegas, a veteran defense attorney whose former clients include George Washington Bridge lane-closing mastermind David Wildstein. “They could see this guy as milking the system.”
Conversely, the defense might seek jurors who display a populist bent and might look favorably on Melgen as a business owner fighting against more powerful interests, said Mala Ahuja Harker, a former assistant U.S. attorney in New Jersey with experience prosecuting public corruption.
Debating the ‘official acts’
The heart of the government’s case focuses on a series of meetings and interactions Menendez had with, among others, then-Health and Human Services Secretary Kathleen Sebelius and acting Medicare administrator Marilyn Tavenner.
Jurors will have to weigh whether those fall under the category of “official acts” under a law whose definitions have shifted in the wake of a 2016 Supreme Court ruling in the case of former Virginia Gov. Robert McDonnell.
Prosecutors likely will seek jurors “who are smart, who are sophisticated and who appreciate the way the world works,” said Adam Lurie, a former federal prosecutor.
Senate seat in the balance?
The broader political implications of the trial shouldn’t be ignored during jury selection, said Lee Vartan, a former assistant U.S. attorney.
If Menendez is convicted and steps down or is forced out of the Senate — a move that would require a two-thirds majority vote — before Gov. Chris Christie leaves office Jan. 16, the Republican would pick a successor. The seat is up for election next November. Democratic gubernatorial nominee Phil Murphy has a large lead in polls ahead of his Republican challenger in the race to replace Christie.
“Whether people think he’s innocent or guilty, maybe they can’t stomach having a Republican governor appointing a Republican to a Democratic seat,” Vartan said. “I would want to know that.”
Republicans have a 52-48 edge in the Senate, but their slim majority is one of the factors making pushing Trump’s agenda difficult. An attempt to repeal former President Barack Obama’s signature health law fell by one vote last month.
Attorneys also might take a deep dive into where Menendez’s strongest political support, or opposition, lies in the state when considering jurors, Vartan said.
Menendez had a 44 percent approval rating in a Quinnipiac University poll released in June, but the same poll found that 44 percent of voters don’t think he deserves to be re-elected next year. The poll of 1,103 voters had a margin of error of plus or minus 3.8 percentage points.