Amidst the rare glut of good news for Democrats — the thumping of Trump echo Ed Gillespie in Virginia’s gubernatorial race, a thumbs-up for Obamacare in Maine’s referendum, a winnable Senate race in red Alabama (a new Fox News poll shows accused perv Roy Moore trailing by 8 points), the prospects for a blue wave in 2018, a lesbian winning a state Senate seat this week in red Oklahoma — amidst all that, it’s easy to overlook the liberation of Bob Menendez.
It’s not exactly the cleanest triumph on the Democrats’ slate, but, as politicians like to say, a win is a win. New Jersey’s senior Democratic senator was on trial this fall on 18 federal corruption charges — until yesterday, when a hung jury turned him loose. The jurors were terminally split on whether Menendez had illegally taken bribes, or had simply sought to help a longstanding friend who happened to be rich. Because it’s tough for federal prosecutors to prove a cash-for-favors connection — tougher than ever, for ironic reasons I’ll explain — Menendez was let off the hook.
And politically, Democrats are breathing a big sigh of relief. A criminal conviction would’ve sparked demands for Menendez’s immediate resignation, and if he’d resigned on Chris Christie’s watch, the lame-duck governor would’ve replaced him with a Republican, thus augmenting the GOP’s fragile Senate majority. With Menendez still in place, and with Alabama potentially going blue thanks to Moore, that GOP advantage could be whittled to 51-49; if that happens, Senate Republican bills would die if only two party members say no.
I wouldn’t presume to argue that Menendez is as pure as the driven snow; back when Menendez was the mayor of Union City, he reportedly made a real estate killing on a rowhouse after the zoning in that neighborhood was somehow switched from residential to commercial. This fall, it was factually stipulated that his co-defendant in the hung trial, affluent eye doctor Salomon Mengel, showered him with free flights and vacations and six-figure super-PAC donations; Menendez tried to help Mengel in several financial and contractual disputes, and helped get visas for some of Mengel’s friends.
Was Menendez guilty of criminal corruption, or was it just politics as usual? That’s what the jury couldn’t decide. And the core irony of this episode — it’s perversely delicious — is that the Democratic senator skated because the Republican-led U.S. Supreme Court basically made it possible.
John Roberts and his fellow Republican appointees — worried about prosecutorial overreach, worried about the potential criminalization of routine political behavior — have decreed in recent rulings that federal prosecutors must have slam-dunk evidence of a direct, specific connection between a donor’s gift and a politician’s favor. That’s a very high bar. Today, Democrats are thankful.
Last year, the Roberts court overturned the corruption conviction of ex-Virginia governor Robert McDonnell, ruling that even though McDonnell made some calls to help a benefactor who’d given him gifts, he had not formally used his gubernatorial power to benefit the benefactor. The court said that “arranging a meeting, contacting another public official, or hosting an event” was not sufficient proof of a gift-for-favors connection.
In Bob Menendez’s case, there were no smoking-gun letters, emails, notes, or wiretaps that might’ve proved he was flexing legislative muscle for Mengel in exchange for Mengel’s money and perks; indeed, Menendez in his capacity as a senator didn’t do anything for Mengel in the legislative realm. He mostly went to bat for Mengel in some meetings with agencies and officials who had the final say. And enough jurors were persuaded that Mendendez and Mengel were more than just politician and donor, that they truly were old friends who’d vacationed together and attended their children’s weddings.
The thwarted Justice Department could decide to try Menendez again (no word on that yet). But if so, the trial would take place in 2018, which means that even if Menendez were convicted and compelled to quit the Senate (both long shots), newbie Democratic governor Phil Murphy would appoint a Democrat in his place. And even if a new trial landed in the midst of Menendez’s expected ’18 re-election bid, it’s questionable whether a cloud over his head would trigger a defeat. Care to guess the last time a Republican won a Senate race in New Jersey? 1972.
Yesterday, Menendez celebrated his sorta-exoneration by saying: “To those who were digging my political grave so they could jump into my seat, I know who you are and I won’t forget you.”
Jeez. If only he hadn’t sounded so … Jersey. But these days, Democrats will take any win they can.
And speaking of Roy Moore, here’s the Dialogue of the Week. It comes to us courtesy of Gena Richardson, who was a teenager at the Gadsden Mall in 1977 when she refused to give Moore her phone number. A few days later, at her high school, she was summoned to the front office to take a call:
“Gena, this is Roy Moore.”
“What are you doing?”
“I’m in trig class.”