Menendez Mistrial Leaves U.S. With Choice: Retry or Give Up?

(Bloomberg) -- The mistrial in the corruption case of Senator Robert Menendez leaves prosecutors with a vexing decision: Retry him or fuhgeddaboudit?

The U.S. government will weigh many factors after jurors failed to reach unanimous agreement on any of the 18 counts in a 2015 indictment of Menendez and his co-defendant, Salomon Melgen, a close friend and wealthy donor. U.S. District Judge William Walls declared a mistrial Thursday in Newark, New Jersey.

Menendez Mistrial Leaves U.S. With Choice: Retry or Give Up?

Complicating the prosecution’s decision will be comments by juror Ed Norris after the mistrial. He said the panel favored acquittal of Menendez and Melgen by a 10-2 margin.

Asked how he saw the prosecution case, he said: “I don’t want to use weak. They worked very hard on this case, and you could tell. I don’t want to disrespect the officers and everybody involved. They just didn’t prove it to us, to 10 people.”

Michael Levy, a former U.S. prosecutor now at Paul Hastings LLP in Washington, said the Justice Department considers several factors when looking at whether or not to retry a case. “One is how close the jury was to a possible conviction,” he said.

The Justice Department said it “appreciates the jury’s service in this lengthy trial. The department will carefully consider next steps in this important matter and report to the court at the appropriate time.”

Official Acts

Menendez was accused of misusing his office to perform official government acts for Melgen in exchange for private jet trips, luxury vacations and campaign contributions. Prosecutors failed to persuade all 12 jurors that the exchange of gifts and favors was part of a corrupt agreement, rather than a close friendship, as the defense argued.

The Justice Department has a spotty record in other public corruption cases. Menendez is the first senator charged with a crime while in office since the 2008 conviction of Alaska Republican Ted Stevens of seven corruption-related felonies. That verdict was set aside in 2009 because of prosecutorial misconduct. Stevens was killed in a plane crash the following year.

Menendez’s attorney Abbe Lowell previously represented former Senator John Edwards, a North Carolina Democrat, in a corruption case that resulted in an acquittal on one count and a mistrial on five others. Prosecutors elected to drop the remaining charges.

Last year, the U.S. Supreme Court overturned the conviction of former Virginia Governor Bob McDonnell in a ruling that narrowed the definition of bribery of public officials. Since then, courts have overturned other such convictions.

The Department of Justice “has enormous difficulty bringing successful corruption cases against major politicians,’’ Levy, the former federal prosecutor, said. “It’s not necessarily the DoJ’s fault. Complications arise from the fact that our political system is a mix of money, politics and friendship in almost indistinguishable ways.’’

Politics and Money

Given that perilous legal landscape, another former prosecutor said the Justice Department’s theory in the Menendez case has been flawed from the start.

“It’s an indictment of the way politics operates in Washington,’’ said Lee Vartan of Chiesa Shahinian & Giantomasi. “People give money and get access. It’s just a reality of the system. Getting money for their campaign chest is the transactional nature of politics. Senator Menendez was prosecuted for that.”

But other onetime prosecutors said a retrial offers an opportunity to present the case in a more compelling fashion.

“It’s more of a mulligan for the prosecution than it is for the defense,” said David Weinstein of Hinshaw & Culbertson in Coral Gables, Florida.

One former prosecutor, Mala Ahuja Harker, said the government must look closely at whether it can present the evidence in a more compelling way than it did during the nine-week trial.

“The way the circumstantial case was built, slowly and methodically, may have left a negative impression that was hard to overcome,” said Harker, of Freidman Kaplan Seiler & Adelman LLP. “If you don’t capture the jury’s attention early on and hook them, it can be difficult. Maybe now there’s an emphasis on strategy and repackaging the case in a different way.”

Menendez was indicted in 2015, three years after the Senate Ethics Committee began a probe into his alleged misconduct. The committee put the investigation on hold during the criminal investigation. Now, the committee intends to resume the process, according to a statement from several members, including Chairman Johnny Isakson.

In its McDonnell decision, the Supreme Court made it harder for prosecutors to prove that a public servant took an official act in exchange for a corrupt payment. Weinstein said the Justice Department must evaluate the impact of the McDonnell decision on its theory of how Menendez broke the law.

Prosecutors might surrender if they conclude that most jurors found the case unconvincing, lawyers said. The political backdrop is also complex, with Republican Attorney General Jeff Sessions now running the Justice Department.

“There will be tremendous pressure on the government to retry,’’ said another ex-prosecutor, Richard Strassberg of Goodwin Procter. “Given the high profile nature of this case, I expect they would seek a retrial.”

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