NEWARK – It was supposed to be a game-changing moment at the trial of Sen. Bob Menendez, the closest thing to the case being dismissed. The theory the prosecution had rested its case on was no longer valid, and the defense would prevail upon Judge William Walls to dismiss all but one charge against the senator.
With it, Walls at least informally coined a new theory of bribery – “I have your back” – where two friends agree to help one another on an “as needed” basis.
“I don’t think friends are sitting down dotting “I”s and crossing “t”s in regards to planning,” Walls said.
In addition to the McDonnell case, Walls mentioned the two setbacks dealt prosecutors in New York – the reversal of former state Senate majority leader Dean Skelos’ and former Assembly speaker Sheldon Silver’s corruption convictions – as his precedent for keeping the case intact.
The first sign of trouble for the defense came minutes after the judge took the bench this morning, when Walls reversed much of what he prodded the lawyers to argue last week, that the McDonnell case invalidated the “stream of benefits” bribery theory.
“I have read McDonnell so often now I’m a little jaded, but I don’t see any such language,” Walls said.
Lowell pointed to a portion of the Court’s ruling in McDonnell that said the official act must be more focused than a “broad policy objective” for a bribe to be charged. Melgen’s defense pointed out another potential flaw: the issues where Menendez gave his friend assistance didn’t exist at the time their bribery conspiracy allegedly began, in 2006.
Attorney Murad Husain said that, in 2006, Melgen had yet to buy the company with the port security contract in the Dominican Republic, and the doctor’s dispute with Medicare did not arise until 2009.
“At the time the thing (of value) was given, the next possible action was nowhere in the mix,” Husain said.
“On that first day there needs to be a specific, identifiable official act,” Lowell said.
Walls rejected that reasoning using an automotive metaphor.
“I don’t accept the assertion that everything had to fall into third gear on January 1st,” the judge said.
“You really think the objective of the resolution of that dispute was anything other than, ‘Get me out of this thing’?” Walls asked. “We’re living in a real world of reality and common sense.”
Drama in the trial was again deferred in the afternoon, with the prosecution suggesting the senator’s son Bob Menendez Jr. gave false testimony in front of the grand jury in the case. But prosecutors did not press the issue, simply reminding the younger Menendez of what he told grand jurors about vacationing with the Melgen family.
Next on the stand was Melgen’s wife Flor, who testified about meeting her husband, their villa at Casa de Campo where Menendez stayed with the family, the senator’s singing phone calls on her birthday each year, and the close ties between Menendez and Melgen.
Lost in translation was Ogrosky’s question to Melgen about whether she had a “relationship” with Menendez outside of her husband.
“I am married and I am loyal to my husband,” Flor Melgen said firmly. Everyone in the courtroom erupted in laughter.