A few days ago, on Friday September 22, the federal prosecutors in the Southern District of New York indicted the senior Senator from New Jersey, Robert Menendez, for bribery. A copy of the full indictment can be found at this link at the New York Times. There is also a detailed summary of the charges in a Department of Justice press release here.

The Menendez indictment gives us the opportunity to look at the conduct of Menendez claimed to constitute “bribery” and compare it to some of the well-known and documented conduct of President Biden. Is there any significant difference here that makes one bribery and the other not?

My previous post in this series on September 19 went through the elements of a charge of bribery, showing that it is not a complicated charge, and has only three elements. We hear a constant drumbeat from the government media that there is “no evidence” that Biden engaged in bribery. So what about the conduct Menendez is charged with is so different from what Biden did that Menendez faces decades in prison while Biden gets a pass?

For this exercise, I’ll use the conduct of Joe and Hunter Biden in the Ukraine/Burisma matter as the comparison to the Menendez charges. Of the various corruption allegations involving the Bidens, this Ukraine/Burisma matter is the one that most closely tracks the elements of bribery as listed in the statute.

As set forth in my September 19 post, the three elements of the federal crime of bribery are: (1) “corruptly seek[ing], receiv[ing] [or] accept[ing] anything of value”; (2) “in return for”; and (3) “being influenced in the performance of any official act.” Those elements come from the main federal bribery statute, 18 U.S.C. Section 201. That is indeed the main statute under which Menendez is charged. The indictment calls the first charge “Conspiracy to Commit Bribery,” and specifically cites Section 201 (as well as 18 U.S.C. Section 371, the main conspiracy statute).

If we look at elements (1) and (3) of the crime of bribery, we can see that those elements are clearly present for the Bidens (based on facts known in the public record), and mostly so for Menendez assuming the truth of the facts alleged (although there is a weakness in the claim against Menendez as to element (3)). Element (2) is therefore the critical one for both of these men, to which I will shortly return. As to elements (1) and (3):

• Element (1) is the providing of a “thing of value” (the bribe) to the politician.

  • For the Bidens, the “thing of value” in the Ukraine/Burisma situation is the $3 million or so paid to Hunter Biden by Burisma to serve on its board for several years.

  • For Menendez, the “thing of value” is wads of cash, gold bars, and jewelry given to him by various Egyptian officials and nationals.

• Element (3) is the performance of an “official act” that benefits the briber.

  • For the Bidens in the Ukraine/Burisma situation, this is the threat to withhold U.S. aid in order to get prosecutor Victor Shokin fired and thus end the investigation of Burisma and its Chair Mykola Zlochevsky.

  • For Menendez, this is various favors that he is alleged to have done for the government of Egypt, including “pressuring” U.S. executive agencies to end a prosecution and to protect the monopoly of an Egyptian company, as well as providing U.S. government secret information to Egypt. The weakness here is that, as to the actions within the ambit of executive agencies rather than Menendez himself, he is only alleged to have exerted “pressure,” rather than to have committed the acts himself. However, the same is not true of the alleged transfer of U.S. government secrets to Egypt. Note that this weakness is not present in the case of Biden, who as “point man” for U.S. foreign policy in Ukraine controlled whether the U.S. aid would be delivered.

Now consider element (2), the “in return for” element. This element is generally the crux of bribery prosecutions, because it can be very ambiguous whether one act was “in return for” the other. This is particularly true where the alleged briber is a domestic person or entity and has made what appears to be an ordinary campaign contribution to the politician. Our election system requires campaign contributions, and it is inevitable that nearly every politician has done “official acts” that have benefited multiple campaign contributors in some way or another. It can’t possibly be that every such instance is a bribe. And thus, in the domestic context, the prosecutors have a very hard time distinguishing those payments to politicians that are bribes from those that are not.

But both the Biden and Menendez matters involve payments to the politicians from foreign entities — in the case of Biden, from the Burisma company in Ukraine; and in the case of Menendez, from various people in Egypt. Campaign funding from foreigners is illegal. In other words, for either the Bidens or Menendez, this can’t possibly be campaign funding, or for that matter constituent service.

I won’t try to guess what the defense of Menendez is going to be. But you can see from this that Biden, if prosecuted, would be hanging by a thread. Elements (1) and (3) of the crime of bribery are easily established in the public record. So the only defense that Biden really has is that under element (2) he was going to demand that the prosecutor be fired irrespective of the $3 million paid to his son. That potential defense got knocked to pieces when Just the News came up with the October 15, 2015 U.S. interagency email that concluded that Ukraine had made sufficient progress on corruption that it should get the aid.