It is a felony for a prosecutor or law enforcement official with knowledge of a grand jury’s investigation to disclose to newspapers that an individual is about to be indicted by that grand jury. It is also a fundamental violation of due process. It taints the jury pool. It prejudices the individual’s rights.
Yet on March 6, 2015, and repeatedly, that is exactly what happened, and the victim was Sen. Robert Menendez (D-N.J.). On the same day, The New York Times, the Los Angeles Times and CBS News all reported being told that the U.S. government was “preparing” to or would “likely” file criminal charges of bribery and corruption against the senator. (The Times actually reported that such charges “would” be filed against him.) On the same day, ABC News attributed this report to a “federal official familiar with the case,” and The Washington Post attributed the same report to a “U.S. official.”
It is disappointing that the Justice Department has not announced an investigation to determine the identity of this or these “federal officials” or “U.S. officials.” I don’t recall any public expression of outrage by the DOJ at these possible illegal leaks. Why?
The 68-page detailed indictment surprisingly alleges the crime of bribery — meaning the government must prove that the money paid by the briber “caused” or “influenced” Menendez to specifically take an official action benefiting the briber. However, it is not a crime if the senator’s actions “correlated” with other, legal reasons, such as his sincerely held public policy concerns. There is ample reason to believe this case deserves to be heard on the merits.
The indictment details various gifts, campaign donations and vacations made by Menendez’s long-time friend Dr. Salomon Melgen. The government has to prove these gifts were made by Melgen, who has also been indicted, because he wanted to obtain official acts by the senator that would benefit him financially, rather than correlated with the fact he was a long-time friend and supporter of the senator’s and that the senator took the gifts and donations in the same spirit of friendship.
Regarding Menendez’s official acts cited in the indictment, again the government must prove — beyond a reasonable doubt — that he acted because of the money, and not for a deeply held public policy conviction that he was doing the right thing.
For example, there is no dispute that the senator publicly tried to change the position of the government’s chief Medicare agency regarding the application of a complicated drug reimbursement formula. As applied by that agency, the formula required Melgen to repay the government millions of dollars in Medicare payments.
Will a jury believe that Menendez had a good-faith basis for opposing the Medicare agency based on policy reasons, and not because of the money donated to him in gifts and campaign contribution by his friend, Melgen? If so, then his actions would not be a crime. In fact, it would be what senators do each day.
Another example is when the senator contacted the State and Commerce departments, asking them to challenge the Dominican Republic for allegedly reneging on a $500 million contract involving anti-drug-trafficking screening equipment with a U.S. company substantially owned by Melgen. Will a jury believe that Menendez took this position consistent with his post-9/11 legislation on inspecting every cargo container coming to U.S. shores or doing special pleading for his friend?
The prosecution’s case appears to rest on persuading a jury to ignore the famous logical causation fallacy, expressed in Latin as “post hoc ergo propter hoc,” (“after this, therefore, because of this.”) In essence, the jury must believe that temporal sequence is integral to causality. In other words, “The rooster crows immediately before sunrise, therefore the rooster causes the sun to rise.”
One or more jurors may say, “Not so fast.” They may have reasonable doubt that the money was the reason the senator did what he did, rather than sincere public policy grounds.
At the very least, the public should honor Menendez his constitutional right to the presumption of innocence until a jury finds him guilty beyond a reasonable doubt — as difficult as that may be, given the flood of possibly illegal leaks by anonymous “government officials.”
Lanny Davis served as special counsel to former President Clinton and is principal in the Washington, D.C. law firm of Lanny J. Davis & Associates, and is Executive Vice President of the strategic communications firm, LEVICK. He is the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster).