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Sen. Bob Menendez beat federal bribery charges before. Here’s why this time is ‘different from top to bottom’

Prosecutors appear to have learned lessons from Menendez's 2017 bribery trial, which ended in a hung jury and his acquittal on some charges, and returned this time with a stronger case, experts say.

Bob Menendez has faced potentially career-ending federal bribery allegations before and emerged unscathed — a fact that New Jersey’s senior U.S. senator touted Monday in his first public remarks on the indictment filed against him last week.

“Prosecutors get it wrong sometimes. Sadly, I know that,” the three-term Democrat said at a news conference in Union City, referring to a 2017 corruption trial that ended with a hung jury and the Justice Department opting not to retry the case.

But despite Menendez’s vows to fight the new charges, legal experts say that this case bears marked differences from last time and that building a defense may present a much more daunting task.

From the apparent strength of the evidence — including photos of alleged bribes of gold bars and cash stuffed in a jacket in the senator’s closet — to extensive communications detailing the alleged bribery schemes, prosecutors appear to have learned from the last trial and returned with a stronger case.

“The complexion of this whole thing is different from top to bottom,” said Eric L. Gibson, a former trial attorney in the Justice Department’s Public Integrity Section and partner at the Philadelphia law firm Post & Schell, who, like other legal experts quoted in this article, is not involved in the current Menendez case. “I would be drooling over this if I were still a federal prosecutor. … I just don’t see how they push back against this in a credible fashion.”

» READ MORE: Sen. Bob Menendez’s indictment is already having a domino effect on New Jersey and national politics

The 39-page indictment accuses Menendez and his wife, Nadine Arslanian, of accepting bribes worth hundreds of thousands of dollars — including the gold bars, mortgage payments on Arslanian’s Bergen County apartment, and a 2019 Mercedes Benz — from three New Jersey businessmen seeking to buy the senator’s influence.

Prosecutors say they have thousands of text messages and email communications between the couple and their codefendants detailing quid pro quo agreements on everything from U.S. policy toward Egypt to Menendez offering the executives help with pending criminal cases against them.

“Anytime you need anything, you have my number and we will make everything happen,” Arslanian texted one Egyptian official seeking Menendez’s influence in a 2020 dispute over the building of a dam in Ethiopia, according to the indictment.

Texts and emails could make case against Menendez stronger than the last

Those communications records could present one of the strongest differences between this case and the one Menendez faced in 2017, said Henry E. Hockeimer Jr., chief of white-collar defense at the Philadelphia law firm Ballard Spahr.

Back then, prosecutors put on a largely circumstantial case involving allegations that the senator accepted luxury vacations, flights on private jets, and hundreds of thousands of dollars in campaign contributions from Salomon Melgen, a Florida eye doctor and longtime friend. In exchange, they argued, Menendez lobbied senior officials in the Obama administration to help Melgen in billing disputes with Medicare, to obtain visas for his foreign girlfriends, and to protect a contract Melgen held with the government of the Dominican Republic.

But the testimony presented in court — much of it delivered by FBI agents seeking to draw connections from flight records, veiled emails, and timelines of Menendez’s actions — quickly devolved into a slog.

Defense lawyers argued that the supposed bribes were nothing more than gifts between friends. They showed jurors photos of the senator and the doctor sitting together in lounge chairs and presented testimony from family members, including Melgen’s wife, who described the two men as so close that her family had a nickname for the duo — “Sabob” — a combination of their first names, Sal and Bob.

Prosecutors may have documented the extraordinary lengths to which Menendez went to help Melgen, but failed to persuade a jury that any of the gifts specifically influenced the senator’s actions.

Jurors later told reporters they had voted 10-2 to acquit. And the judge overseeing the case acquitted the senator on several charges, citing a lack of evidence from which “a rational juror could find an explicit quid pro quo.”

» READ MORE: U.S. Sen. Bob Menendez indictment: Read the charges

This time, Menendez and Arslanian may have aided prosecutors in bolstering that aspect of their case, communicating in what appears to be explicit fashion about the alleged bribery and gifts, Hockeimer said.

For instance, when one of the men — Wael Hana, operator of a New Jersey-based halal meat certification company — sought Menendez’s help preserving a monopoly that Egypt had granted him, Arslanian asked Hana to assist her with her $30,000 in overdue mortgage payments, prosecutors said.

In texts quoted in the indictment, she groused to Menendez when those alleged payments didn’t initially come through.

“I am soooooo upset,” she wrote in September 2019. “I thought after everything that happened, especially last Saturday and that week [referring to meetings Menendez had with senior Egyptian officials] that at least he would honor his word one time.”

Gibson — the former DOJ lawyer who prosecuted corruption cases against U.S. Rep. Chaka Fattah and Philadelphia City Councilmember Kenyatta Johnson — described those communications as “incredibly damning.”

“The problem [before] was that you didn’t have someone explaining explicitly in the language that’s provided here,” he said. This time, he said, “the jury doesn’t have to make a leap. She’s writing it out for them.”

Explicit agreements and ‘consciousness of guilt’

When another of the businessmen — Jose Uribe — allegedly bought the couple a new Mercedes-Benz C-300 convertible in 2019, hoping the senator would lobby prosecutors to drop a pending criminal case against a business associate, Uribe allegedly laid out expectations in a text.

“The deal is to kill and stop all investigation,” he wrote to Hana, according to the indictment.

Courts recognize that bribery schemes can play out in what is known as a “stream of benefits” — payments meant to effectively put a public official on retainer, as was alleged in the Melgen case. But the explicit understandings alleged in the new indictment are likely to be more graspable to a jury.

“Linking a particular thing of value to a specific official act is a stronger, more powerful case,” he said.

» READ MORE: Who is Bob Menendez’s wife, Nadine? Who else was charged in the indictment?

The indictment is also rife with references to dozens of instances in which Menendez or Arslanian deleted text messages or emails in proximity to alleged bribe payments or requests from their codefendants.

When Arslanian texted Menendez in 2019 asking whether she should write directly to Hana about his failure to come through with money as expected, the senator, according to the indictment, responded: “No, you should not text or email.”

Prosecutors are likely to argue that those deleted messages and Menendez’s caution about putting requests in writing suggest “consciousness of guilt,” Hockeimer said. He also noted that Menendez’s failure to report the gifts on Senate financial disclosure forms could be used as evidence against him.

Menendez argued in 2017 he simply took gifts from a friend. That may be harder this time

Unlike in the Melgen case — in which defense lawyers argued that Menendez’s long-standing relationship with the eye doctor made it impossible to disentangle gifts between friends from alleged bribes — Menendez, as prosecutors describe it, had little to no relationship with his codefendants in the new case.

The indictment describes Hana as a longtime friend of Arslanian’s whom she introduced to her husband. Uribe and the third indicted businessman, Fred Daibes, both sought favors from the senator after being introduced to him through his wife and Hana.

“It’s easier for a jury to accept that a buddy might give somebody a ride on the plane, or a spot in a vacation home, than it is to say, ‘It’s pretty common for friends to exchange gold bars or hundreds of thousands of dollars in cash,’” said Sidhardha Kamaraju, former assistant U.S. attorney for the Southern District of New York who is now a partner at the New York firm Pryor Cashman.

» READ MORE: N.J. Gov. Phil Murphy, other top Democrats call on Sen. Bob Menendez to resign after second bribery indictment

But despite those obstacles, Menendez remained defiant Monday and, in his public statements, has begun to outline a potential defense. He’s described many of his alleged actions as routine constituent services. And any prosecution will have to overcome the fact that the U.S. Supreme Court has reined in anticorruption statutes in recent years.

As for the hundreds of thousands of dollars in cash found during the search of his home, some of which the FBI found stuffed in Menendez’s Congressional Hispanic Caucus jacket, the senator offered an explanation for that, too.

He said that for decades he’s routinely withdrawn thousands of dollars from his personal savings account “for emergencies” — a habit he’d formed as the child of Cuban immigrants who grew up in financial uncertainty.

Still, he acknowledged, defending himself in this case would be his “biggest fight yet.”

“But as I have stated throughout this whole process,” he said, “I firmly believe that once all the facts have been presented, I will be exonerated but I will also still be New Jersey’s senior senator.”