The NPR Politics Podcast - What Counts As An Official Act? Why Corruption Is Hard To Convict

Episode Date: September 25, 2023

Senator Bob Menendez, a New Jersey Democrat, is facing federal bribery charges. Federal agents found hundreds of thousands of dollars in cash and gold at his home.Menendez is remaining defiant and says he will not resign. The senator has faced previous corruption charges — the case ended in a hung jury.We discuss why these types of cases can be so challenging for prosecutors to win.This episode: White House correspondent Asma Khalid, justice correspondent Ryan Lucas, and political correspondent Susan Davis.The podcast is was produced by Casey Morell and Elena Moore. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Support for this podcast and the following message come from Autograph Collection Hotels, with over 300 independent hotels around the world, each exactly like nothing else. Autograph Collection is part of the Marriott Bonvoy portfolio of hotel brands. Find the unforgettable at AutographCollection.com. My name is Reese. I am standing outside of the United States Citizenship and Immigration Services building in downtown San Francisco, where my husband Bruce is inside, participating in the naturalization oath ceremony to become a United States citizen. This podcast was recorded at 1.06 p.m. Eastern Time on Monday, September 25th of 2023. Things may have changed by the time you hear this.

Two things that will definitely have changed is that my husband will be a United States citizen and he will be registered to vote. Okay, here's the show. Those ceremonies, they're so moving. Congratulations. It's a big deal. That is true. Congratulations. Well, hey there, it's the NPR Politics Podcast. I'm Asma Khalid. I cover the White House. I'm Ryan Lucas. I cover the Justice Department. And I'm Susan Davis. I cover politics. And today on the show, the wild story of a high-profile senator from New Jersey who's been indicted on corruption charges. Democratic Senator Bob Menendez has been

accused of bribery. The allegations include reports of gold bars, a luxury car, and wads of cash found at his home. And the evidence might look damning on the surface, but this morning Menendez was defiant, insisting he will not resign from office. To those who have rushed to judgment, you have done so based on a limited set of facts framed by the prosecution to be as salacious as possible. Remember, prosecutors get it wrong sometimes. Sadly, I know that. Now, before we talk about the senator's response, Ryan, I do think it's important that we outline what Menendez is actually accused of, what is in the federal indictment. Well, there's a lot in this indictment. It's a 39-page indictment, and it is chock full

of detail. But what it basically boils down to is prosecutors say that Menendez and his wife accepted hundreds of thousands of dollars. And in exchange, Menendez used his position, as you said, as a very powerful senator in the U.S. Senate to help out three New Jersey businessmen who were also charged in this case, but also, interestingly, to benefit the government of Egypt. Prosecutors say that Menendez gave sensitive, non-public U.S. government information to the Egyptian government about U.S. embassy staff in Cairo, U.S. military aid to Egypt, which is of note because Menendez was one of the top lawmakers and the top two lawmakers on the Senate Foreign Relations Committee, and of course would have a say in whether that aid would go through. Prosecutors also say that he tried to influence both state and federal prosecutions of some of his co-defendants or issues related to them in New Jersey.

But where this indictment really pops is when it comes to what they say that he got in exchange for these actions. The gold bars. Where did they come from? So federal agents conducted a search of his house last summer, and they found some $480,000 in cash. Some of it was found in jackets with Menendez's name on it. There was a Mercedes-Benz that his wife allegedly received. And then the gold bars, as you said. Yes. The gold bars were found in his

house. Interestingly, some of those gold bars had serial numbers on them. And prosecutors said that those gold bars could be traced back to having been purchased by some of his co-defendants in this case. What is his defense ultimately for having all of this stuff? His explanation for the cash has been this is money that he has withdrawn from his savings account over the past 30 years. He's done so because as the child of Cuban immigrants, there's been a lack of faith in the system. That was his explanation for that. He did not address the gold bullion that was found in the house, which I found notable. This is something that I'm sure his attorneys are going to be telling him not to discuss publicly at all anymore. So we'll see where this case goes. It's interesting because, you know, Menendez has been very aggressive in his defense to Ryan's point that oftentimes lawyers tell you not to speak. Not only is he speaking, but he's been very forceful against the Justice Department. And the statement he put out following the indictment, he blamed, quote, forces behind the scenes who are attempting to silence my voice. He talked about excesses of these prosecutors. And he also claimed racism. He says very point blank in his statement that, quote, those behind this campaign simply cannot accept that a first generation Latino American from humble beginnings could rise to be a U.S. senator.

And I do think it's worth remembering that Menendez has some experience here already. He was the subject of a 2015 public corruption investigation that resulted in a hung jury and his reference to a past indictment, which is clearly a reference to the fact that he was not convicted in that case. So I think that he references that in his point where he says, you know, prosecutors have gotten it wrong before was clearly a reference to his past indictment. So I want to ask you a little bit more actually about this because he did face similar allegations before. And that's what I was struck by is the man went through this process before and he's facing similar, albeit perhaps more specific charges right now with a lot more details and a lot more photographic evidence. But I get what he's

saying that he went down this road before. But doesn't that put pressure on the Democratic Party that like they have been through this process before? Ultimately, they did stand by Menendez's side then. And is there not more pressure on them to perhaps behave differently this time? There is. And there's already evidence of that. Phil Murphy, who's the Democratic governor of New Jersey, came out and called for him to resign very shortly after news of the indictment broke. There's been a wave of elected officials, both in the New Jersey delegation and the Pennsylvania delegation, calling for his resignation, fellow Democrats. That didn't happen last time. I think one key distinction is important to remember is when he was indicted back in 2015,

New Jersey had a Republican governor. It was then Governor Chris Christie. So if Menendez would have stepped down from that seat, Chris Christie could have appointed a Republican to the Senate that obviously tempered a lot of Democratic calls for resignation. That's not the case this time. If Menendez were to step aside, Phil Murphy would appoint a Democrat to fill what is likely a safe Democratic seat. So I think the political calculus for Democrats, just, you know, brass tax calculus is different. I do also think that Democrats are trying to present to the public that they are the party that does not conduct itself in the way that the party of Donald Trump does. And if you need to, you know, you want to draw that distinction,

this is a pretty easy way to draw that distinction, especially when you have such a visually damning case of gold bars and cash in pockets. And not only do I think it matters on sort of the presidential politics and the national politics of it, but a member of Congress put out a statement that I hadn't thought about drawing this connection. Summer Lee is a Democrat from Pennsylvania, and she put out a statement calling him to resign saying, we can't talk about holding Thomas and Alito accountable for selling out our freedoms for luxury vacations and private jets if we fail to hold a senator accountable for selling out his chairmanship. Speaking there of the Supreme Court justices. Yes, exactly. And I think that Democrats have also tried to make Supreme Court ethics a big

thing in this Congress. So if you want to make ethics align, you need to be able to stick to that line. And I think in this case, Menendez is, it's easier for his fellow Democrats to push him overboard now. You know, it is important for us to point out that Menendez is, of course, entitled to due process. That being said, you have already seen a lot of vocal opposition from Democrats in his state of New Jersey calling on him to resign. But so you're not seeing that same kind of vocal outcry from Menendez's fellow members of Congress. And why is that? Well, one senator has, John Fetterman, the Democrat from Pennsylvania, is as far as I know, the only Democratic senator who's called on him to resign. That's one of the things to watch here. Senate Majority Leader Chuck Schumer put out a very

milquetoast statement last week, just saying he's entitled to due process, noting he's going to step aside as chairman of the Foreign Relations Committee for now. What does Schumer do, right? This is going to be a question. I think if Joe Biden weighs in on this, and if Schumer weighs in on this, those would be sort of waterfall moments for him. Harry Reid, the then Democratic leader, when he was indicted the last time, never, ever called on Menendez to resign. So this also puts Schumer in a very tricky position. And these are two people that have known each other for decades, right? Like New Jersey and New York politicians have their own alliance. And both of those men have been in

New Jersey and New York politics for the better part of the past 40 years. So I think not only is there a political calculus for Schumer, but there's also probably a personal one as well. All right, let's take a quick break. And we'll be back in a moment. Hey there, Tamara Keith here, senior White House correspondent. On our latest bonus episode, we play some trivia with a Politics Podcast Plus listener. Ready. Ready to go. Let's do it. And test their knowledge of the latest political news. And may I give a hint? Yes. There's another governor. There's another governor? Check out that episode and find out how you could have a chance to play if you're an NPR Politics Plus listener. If that's you, thanks for your support.

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or visit wise.com. T's and C's apply. And we're back. Sue, do you get the sense that this entire saga around Menendez, that this indictment could move the needle on the Republican Party's perception of the DOJ as being corrupt? Because here you do have the Justice Department going after a Democrat and a fairly prominent Democrat at that. It certainly does seem to put a bit of a hit in the argument that Republicans are making is that this department is unduly focused on Republicans. I'm a little skeptical that Bob Menendez is enough of a household name to really resonate far beyond the state of New Jersey. He has been in public office a really long time.

But I've not seen at this point, I've covered a lot of corruption cases against public officials, and they tend to be limited to their own personal home state politics. I haven't really seen cases at least against congressional corruption sort of clouding up into the national ethos. might go harder on Menendez now than they might have been in another political climate because they are a party that is trying to draw a distinction that they uphold the law, that they are more ethical, that they do not break the rules. And you have to find an example of that. And he has provided that for them pretty easily. And I got to say, as somebody who watched Attorney General Merrick Garland last week on the Hill in front of the House Judiciary Committee, which is one of the kind of hotbeds of anti-DOJ sentiment right now among Republicans. There were a lot of accusations of

political bias leveled against Garland and the department in that hearing. That came even though the Justice Department has recently charged Hunter Biden with gun charges, federal felony gun charges. The complaints are that the department's brought these two massive indictments against former President Trump. They've prosecuted hundreds of people over the January 6th riots at the Capitol. I am hard-pressed to believe that charging Menendez in addition to Hunter Biden is suddenly going to convince the Republicans that I heard on the House Judiciary Committee that the Justice Department is now fair and even-handed, even though Merrick Garland was saying as much and saying that there is one set of law for everyone, Republicans, Democrats. There is no political

bias here, but hard-pressed to believe that this is going to change the needle on that for House Republicans. I also want to ask you both about the specific charges themselves and the likelihood that the corruption charges will stick because Menendez himself has faced similar allegations before, but also he's not the first politician to be charged with something like this. And it seems like it is increasingly more difficult for federal prosecutors to charge politicians with corruption charges, specifically after a recent Supreme Court case. And Sue, can you explain that to us? Yeah, I mean, this is one of my questions that I think is going to make watching this case really interesting. Back in 2016, the Supreme Court took up a case that involved former Virginia

Governor Bob McDonnell, who was found guilty on multiple charges of corruption related to accepting gifts from a donor, things like a Rolex, money for his daughter's wedding, in exchange for trying to help this donor's business. He set up meetings, he held an event at the governor's mansion. And the Supreme Court threw out that case. It was an 8-0 ruling. There was no dissent. And it has had an impact on public corruption cases because the Supreme Court said it sort of raised the bar for how you define an official act. And you have to prove that a public official is taking an official act that they are doing explicitly for the money or the bribe or whatever the special favor is. And that's kind of hard to prove. And I think that you could hear Menendez talking about that today when he was defending the actions he took around Egypt, saying they were consistent with his positions as a public official. And if that is going to be a key element of their defense, you can sort of see why.

I think it looks so obvious when you're talking about cash and gold bars and things like that. But proving quid pro quo for a public official got a lot harder. And if you're Bob Menendez's defense team right now, I think you might be willing to push this case as far as it can go to test the precedent of that case and how it might protect him. Absolutely. And I think that there are a couple important things to add to what Sue said. And one is that the McDonald case happened seven years ago. This is the first huge case that we've had at the national level where prosecutors had that ruling in the back of their mind when they decided to bring these charges. So I think that that's an important thing to note as opposed to cases that

happened prior to that ruling that then went back and we saw changes made to sentencing because of it or appeals awarded. The other thing is I went back and read the McDonald decision, at least part of it, skimmed it, and then went again today through the Menendez indictment. And there are similarities, certainly in the charges that are brought, but there's a lot of detail in this indictment that I think prosecutors were mindful, of course, of the McDonald decision and what they needed to prove, the bar they needed to get to, to prove an official act. Whether ultimately they will get there, we're going to have to wait and see. Prosecutors are going to have to make their case. And ultimately, this is something that, if there is a conviction,

may get the Supreme Court. I'd also note that politicians don't tend to resign when they're involved in public corruption cases or any other criminal cases for that matter, because, and we've seen this a lot in recent years, when they are facing charges, members often stay in Congress because one, you have certain protections as a member of Congress, like the Speech and Debate Clause and the Constitution, but also your role in public office can be part of any potential future plea agreement that you can agree to step down from office as leverage in whatever that may be. Now, we're not saying he gets there. But, you know, look at recent cases involving Republican Congressman Chris Collins, Republican Congressman Duncan Hunter,

Jr. They stayed in office throughout the course of their trials because and then they ultimately did step aside as part of their agreement. So I would be surprised if Menendez did step down just because that is a tremendous amount of leverage he has now. But again, as I said, it's really curious to see what Joe Biden and Chuck Schumer do here now. You know, to that point, Sue, the White House was asked about Senator Menendez on Friday, and the White House press secretary didn't want to engage on any of this. She said that this was an active matter. And so therefore, she had no comment. All right, let's leave it there for today. I'm Asma Khalid. I cover the White House. I'm Ryan Lucas. I cover the Justice Department. And I'm Susan Davis. I cover politics.

And thank you all, as always, for listening to the NPR Politics Podcast.