Menendez says claims against him involve ‘neither official action nor breach of official duty’

Sen. Bob Menendez asked a federal judge Wednesday to dismiss charges that claim he accepted bribes in exchange for official favors to three North Jersey businessmen and two foreign nations, arguing many of the charges fail to meet a constitutional test that bars prosecutions for members of Congress over official actions.

In the new court filing, Menendez, a Democrat, argues prosecutors relied on certain actions the U.S. Constitution bars for prosecutorial use. He leans on a 2016 U.S. Supreme Court decision in McDonnell v. United States that sharply limited the scope of the federal bribery statute by narrowing the definition of “official act” to exclude meetings, event hosting, and calls to other public officials.

The senator faces a raft of corruption charges, including conspiracies to commit bribery, honest services fraud, and extortion under the color of official right. He is also accused of acting as a foreign agent for Egypt and Qatar, charges that are unprecedented for a sitting member of Congress.

Prosecutors allege Menendez received cash, gold bars, furniture, a Mercedes Benz, and payments to a consulting firm launched by Nadine Menendez — the senator’s wife and co-defendant — in exchange for his intercession in criminal prosecutions, military aid disbursements, and international negotiations, among other things.

In his motion to dismiss the case, the senator argues he could not face bribery charges over the alleged schemes because of the Constitution’s speech or debate clause.

“To be clear, no Member of Congress is above the law—Senator Menendez included. The government is free to prosecute a Member of Congress for agreeing to exchange legislative action for personal benefits, so long as it does not cast aspersions on (or reference) any legislative acts themselves,” the filing reads. “But here, the Indictment does not try to walk that line; it flouts it entirely.”

The filing says the actions that prosecutors allege Menendez took as part of the schemes — like calls to prosecutors or urgings that federal agencies intervene in negotiations between Egypt, Sudan, and Ethiopia — also would not sustain a bribery prosecution because such unofficial actions would not meet the bar for a quid pro quo set by federal bribery law.

Menendez, who joined the U.S. Senate in 2006 and whose term ends next year, has said he will not resign. He has not announced a campaign for reelection yet, though four Democrats, including Rep. Andy Kim and First Lady Tammy Murphy, are seeking the Democratic nomination for his seat in June.

His trial is set to begin in May, just as voters are receiving mail-in ballots for June’s primary.

Among the allegations facing Menendez are claims that he sought to interfere in the state prosecution of a relative and associate of co-defendant Jose Uribe. In Wednesday’s motion, Menendez argues he cannot face bribery charges over this claim because, as a federal lawmaker, he has no official authority over state matters, and because he did not leverage the powers of his office — by stalling grant funds, for example — in his discussions with a senior state prosecutor overseeing the case.

“Ultimately, the New Jersey Scheme rests on activities that any private citizen could equally undertake,” the senator’s filing says. “That is a telling sign that it involves neither official action nor breach of official duty. In legal terms, this scheme has no quo.”

Prosecutors’ allegations regarding Menendez’s actions in relation to Egypt and Qatar are some of their most eye-popping. They say Menendez issued favorable statements about Qatar to help co-defendant Fred Daibes secure a development deal with a member of Qatar’s royal family, and that he shared sensitive but unclassified information with Egypt about staffing at the U.S. Embassy in Cairo, another other claims.

In a speech on the floor of the Senate Tuesday, Menendez prosecutors in his case are attempting to criminalize “the normal engagement of members of Congress with a foreign government.” He made similar arguments in his Wednesday filing.

“It takes little imagination to see what winds the government is sowing,” the senator’s filing says. “Suppose a senator comes back from Israel and says he will support whatever aid Prime Minister [Benjamin] Netanyahu seeks. When he does so, is that at the ‘order’ or ‘request’ of a foreign power? Does it matter whether he would vote that way anyway? Is this really a question for a jury at trial?”

The filing says Menendez will unveil more details in future documents submitted to the court by Jan. 15.