Key question in Menendez case: What is friendship?

WASHINGTON - What makes a true friend?

For Sen. Robert Menendez (D., N.J.), it's not just a philosophical question. It's the crux of the argument that could decide his legal fate.

Facing 14 federal charges that he delivered official favors for a political donor who lavished him with private jet flights, stays at a Dominican resort and a luxury Paris hotel, and nearly $800,000 in political and legal support, Menendez plans to fight back by arguing that the gifts were the kinds of things one friend gives another, nothing more.

Prosecutors "don't know the difference between friendship and corruption," Menendez said last week when the charges were announced.

He has said he followed the law and will be vindicated in a trial.

In March, Menendez said he and the donor, South Florida eye doctor Salomon Melgen, had been "real friends for more than two decades. We celebrate holidays together, have been there for family weddings and funerals, and have given each other birthday, holiday, and wedding presents - just as friends do."

The 68-page indictment makes no reference to the relationship, a point Menendez's team hopes to exploit.

"Friends help friends, and that is not illegal," said Adam Lurie, a former federal prosecutor in New Jersey and Washington who now works at the Cadwalader, Wickersham & Taft law firm.

Considering the long history between the men, Lurie said, prosecutors face a challenge proving that the gifts were something sinister.

By itself, official action that helps a friend is not illegal.

A key for the Justice Department will be demonstrating criminal intent behind the gifts, said Scott Coffina, another former prosecutor. In the indictment, prosecutors took pains to point out how some gifts from Melgen coincided closely with official help from Menendez.

"One of the strongest points, evidentiary points, that the government is going to try to make is the timing of these things," said Coffina, now in the Philadelphia office of the Drinker Biddle & Reath law firm. "The indictment often ties them together in tight time frames."

In 2012, Melgen wrote a $300,000 check to Majority PAC, a Democratic committee that aims to help the party's Senate candidates. The money was later earmarked for New Jersey, where Menendez was seeking reelection, the indictment says.

Six days later, prosecutors allege, Menendez met with the acting head of the Centers for Medicare and Medicaid Services, raising Melgen's long-running fight against a ruling that he overbilled Medicare by $8.9 million.

In another instance, the indictment says, a Menendez staffer got in touch with the State Department in May 2012 to set up a meeting that could aid one of Melgen's business deals. The same day, Melgen told another Menendez aide he would contribute the $60,000 sought for the senator's legal defense fund and the New Jersey Democratic Party.

"The closer they are together, the more the jury is liable to believe that there's quid pro quo," Coffina said.

Prosecutors also may rely on the sheer volume of gifts: 16 flights for Menendez or his guests, usually on Melgen's private jet; numerous visits to Melgen's vacation villa in the Dominican Republic; a three-night hotel stay in Paris valued at close to $5,000; five- and six-figure campaign donations; and a steak-house meal for three that cost $356.80, among others.

One aim "of painting the canvas so largely and so broadly" is to show "that Melgen provided so many things of value that it's just going to outweigh any specific tangible gifts that Menendez may have given him in return, leading to the conclusion that the other gifts Menendez may have given were the official actions," said Robert Walker, a former federal corruption prosecutor and Senate ethics counsel, now with the law firm Wiley, Rein, based in Washington.

Ethics rules generally bar senators from taking gifts worth $50 or more, and limit cumulative gifts to less than $100 per year from each giver. (Simply exceeding those limits typically prompts a Senate scolding, not criminal charges, but the rules show the parameters lawmakers are supposed to live by.)

The rules allow exceptions for friends' gifts worth up to $250, but beyond that, even a gift from a friend requires written approval from the Senate Ethics Committee. Menendez did not seek such approval.

If he had, one factor in considering an exception is "the history of the relationship," including "any previous exchange of gifts."

There is a difference, for example, between old college roommates who remain friends and "when the relationship is based on the fact that you were a public official," said Meredith McGehee, policy director for the Campaign Legal Center, a nonpartisan ethics group.

Menendez and Melgen met at a fund-raiser in the early 1990s, according to news reports, though the senator's spokeswoman said she could not confirm the details, other than that they have known each other more than 20 years.

While prosecutors have highlighted the vacations Menendez and Melgen took together in the Dominican Republic, those trips may also back up the friendship defense, Coffina said.

If Melgen wanted only to bribe Menendez, he did not have to spend time with him. The senator's allies say the two have vacationed together for years, an assertion backed up in the indictment.

"That's actually pretty compelling when it comes to demonstrating a genuine friendship," Coffina said. "That undermines intent - but it doesn't get [Menendez and Melgen] home, because friends can still corrupt each other."

A friendly gift also can be attached to ulterior motives, Walker said.

"Mixed motives don't insulate participants from liability" if the government can prove that the gifts spurred official action, he said.

The question is likely to come down to individual interpretations on the jury, said Lee Vartan, a former federal prosecutor in New Jersey and now a defense lawyer at the Holland & Knight law firm.

"There's no legal definition of friend," Vartan said. "It's simply convincing a juror, because a hung jury is as good in many ways as an acquittal for Menendez."