Several senators said Menendez should not be tried again on corruption charges after a jury could not reach a verdict.
Senators from both parties said Thursday that Sen. Bob Menendez would be able to resume his work without interference, and some said it would be wrong for the government to try him again after a jury was unable to reach a verdict at his corruption trial.
But an investigation by the ethics committee still could loom in his future, and the burden of proof there is lower than at a trial.
“Bob is a valued colleague, so it’ll be good to have him back here free of these charges,” said Sen. Dianne Feinstein, D-Calif. “I think he went through hell with this, and that’s enough. And the charges were not proven and therefore he should be able to come back and carry on.”
Sen. Patrick Leahy, D-Vt., said that when he was a prosecutor in his younger days, “if you had a mistrial and you had numerous jurors who were willing to say publicly they were going to acquit, that’s it. You don’t try the case over again.”
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One juror interviewed after a mistrial was declared said the panel was split 10-2 in favor of acquittal on most counts.
The decision over whether to retry Menendez will be up to the Justice Department, which pursued the initial charges from its Washington office. Several factors could weigh against seeking another trial, including a U. S. Supreme Court ruling issued two months after the 2015 indictment that changed the definition of bribery and overturned the conviction of the former governor of Virginia, Robert McDonnell.
“It’s up to the government to decide whether to move forward. With all these Supreme Court decisions, it’d be a tough road, but that’s up to them,” said Sen. Lindsey Graham, R-S. C., who testified for Menendez’s defense at the trial and called him “an honest guy.”
Menendez could face punishment, up to possible expulsion, from his colleagues if they decide he violated Senate rules, including one that requires the disclosure of gifts such as the flights he took on the private jet of Florida eye specialist Salmon Melgen.
“His trial shed light on serious accusations of violating the public’s trust as an elected official, as well as potential violations of the Senate’s Code of Conduct,” said Senate Majority Leader Mitch McConnell, R-Ky. “Because of the seriousness of these charges, I am calling on the Senate Ethics committee to immediately investigate Senator Menendez’s actions which led to his indictment.”
The ethics committee, made up of three Republicans and three Democrats, could decide whether to investigate and recommend penalties that range from a private reprimand all the way up through expulsion, which would require a vote by 67 senators.
Leahy said the ethics charges might be harder to prove since nothing was proven at trial. But the standard for a conviction in court is beyond a reasonable doubt, while the standard for the ethics committee is a weaker one, clear and convincing evidence, said Rob Walker, a former counsel to the House and Senate ethics committees.
“It’s possible someone could be found not guilty at a criminal trial, and the committee could still determine clear and convincing evidence of an ethics violation. I think the committee could, and frankly should, conduct its own investigation,” Walker said.
Many senators interviewed said they would wait to see what the Justice Department decided, but in the meantime had no problem with Menendez continuing to serve.
“We still have to get our work done around here,” said Sen. John Cornyn of Texas, the second-ranking Republican leader. “I think people will be interested to see what the developments are, but frankly are focusing on other things.”
Sen. Richard Burr, a North Carolina Republican and chairman of the Intelligence Committee, would not offer an opinion on what the Justice Department should do now, but he did have one about what the department did in 2015.
“I question whether he would have been prosecuted had he not been against the JCPOA,” Burr said, using an acronym for the nuclear agreement President Barack Obama’s administration reached with Iran. “I think the Obama administration was very obvious when he voted against it, they were very upset with him. And it was the Obama administration that started the case.”
Menendez is up for re-election next year, and the National Republican Senatorial Committee pointed to a Quinnipiac University Poll that said just 19 percent of New Jersey voters said he deserves another term.
“After hearing details of Bob Menendez’s corruption during his bribery trial, New Jerseyans are disgusted,” said NRSC Spokesman Bob Salera. “If Menendez chooses to run for re-election, New Jersey voters will reject him.”
If Menendez is politically threatened next year, that could pose a problem for Washington Democrats, who were already looking at an election map with vulnerable incumbents in states that President Donald Trump carried easily.
Senate Minority Leader Chuck Schumer, D-N.Y., did not comment on the mistrial, nor did the Democratic Senatorial Campaign Committee.
Rep. Albio Sires, a Democrat from West New York and longtime Menendez ally, said Menendez has solid support in New Jersey Democratic circles and should be able to come back.
And Michael Soliman, a Menendez spokesman, pointed to the GOP’s problems in deep-red Alabama, where party leaders are trying to get senate nominee Roy Moore to drop out.
“I think the NRSC has enough problems with the Senate race in Alabama,” said Soliman. “Maybe it should spend more time focusing on that. Bob Menendez will do just fine next year.”
