Defenses Against Charges of Bribery

U.S. Sen. Robert Menendez is to be indicted this week for bribery and failure to report gifts. Where there is an effective government ethics program, he would be easily found to have committed administrative government ethics violations. In a criminal case, the official has the edge (and he has already formed a legal defense fund, to obtain legal but inappropriate contributions from those seeking favors from him). According to a Washington Post article yesterday, Menendez has a couple of good defenses that he would not have in a government ethics case.

Friendship
One is that he and the ophthamologist/owner of a company that provides screening equipment for ports have been friends for decades. In most local government ethics codes, gifts from contractors includes gifts from friends who are contractors.

Since gift-giving is reciprocal, think about it the other way around. How would it look if a government official were to give gifts to friends in the form of using their office to help their businesses, as Menendez is alleged to have done? Would it be a defense to argue that the official was doing it for a friend rather than for a contractor? No, in fact it would be admitting to preferential treatment of friends in government business. This is not appropriate conduct.

If gift-giving is not reciprocal, then it is not gift-giving. When normal people make campaign contributions, it is not gift-giving. It's supporting a candidate one agrees with or believes in. Even if the contributor happens to be a friend, she is not seeking anything in return, at least not from the candidate in his role as government official. That's why restrictions are not placed on friends; they're placed on "restricted sources," those seeking special benefits from the government.

Friendship should not be a defense in government ethics situations. It is irrelevant.

Criminal Intent
Menendez has admitted to a failure to disclose flights taken on the ophthamologist's private plane, but says that this failure was an oversight, that he didn't have any criminal intent. In a government ethics context, this would not be a defense. A failure to disclose is a failure to disclose. But in a criminal context, prosecutors need to prove criminal intent:  that the official “knowingly and willfully” failed to disclose. This is difficult.

What Congress needs, just like most cities and counties, is an independent government ethics program with an administrative ethics code that does not require criminal prosecution of ethics violations. If there's clear evidence of bribery, then prosecution may be appropriate. But otherwise, it is extremely difficult and expensive, and causes more problems than it's worth.

Robert Wechsler
Director of Research-Retired, City Ethics

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