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Speaker 1: As Congress is in meshed in one dramatic crisis after another,

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Speaker 1: another drama began unfolding more than two hundred miles away,

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Speaker 1: which could have implications for the Senate. For the first

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Speaker 1: time in nearly four decades, a sitting US senator went

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Speaker 1: on trial for bribery in federal court yesterday. New Jersey

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Speaker 1: Democratic Senator Robert Menendez proclaimed his innocence outside the Newer

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Speaker 1: courthouse before the trial began. I started my public career

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Speaker 1: fighting corruption. That's how I started, and I have always

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Speaker 1: acted in accordance with the law, and I believe when

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Speaker 1: all of the facts not owned, I will be vindicating.

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Speaker 1: Then he went inside to hear prosecutors call him a

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Speaker 1: corrupt politician who sold his Senate office for ritzy life

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Speaker 1: he couldn't afford. The senator's attorney did not dispute that

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Speaker 1: Dr Salmon Meligan, who's also on trial, paid for lavish

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Speaker 1: trips for Menendez and gave him hundreds of thousands of

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Speaker 1: dollars in campaign donations, But he said the question was why,

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Speaker 1: and the answer was friendship. Joining me are Robert Mints,

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Speaker 1: head of the white collar and Government Investigations practice at

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Speaker 1: McCarter and English and a former federal prosecutor in New Jersey,

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Speaker 1: and Jeffrey Bell and a professor William and Mary Law School,

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Speaker 1: and a former federal prosecutor in d C. Jeff Let's

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Speaker 1: start with a brief outline of the case against Menendez. Okay, sure,

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Speaker 1: So the government has has to show that there was

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Speaker 1: money exchanged for official acts here and so are things

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Speaker 1: of value. And they've got a whole catalog of things

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Speaker 1: of value that went from Dr Melligan to Senator Menendez.

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Speaker 1: Highlights include like an expensive Paris hotel room, some trips

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Speaker 1: to the Dominican Republic where the doctor had, I guess,

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Speaker 1: a nice villa. And then you know, some of the

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Speaker 1: eye catching ones are very large, like effectively campaign contributions

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Speaker 1: up to seven fifty thousand dollars. So that's all the

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Speaker 1: money going to Senator Menendez and things of value. And

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Speaker 1: then the government has a whole bunch of allegations of

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Speaker 1: things that the Senator did for Dr Meligan in that

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Speaker 1: same time period, including intervening on his behalf in a

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Speaker 1: medicare billing dispute, um, intervening on Dr Meligan's behalf in

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Speaker 1: like a business deal having to do with the ports

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Speaker 1: in the Dominican Republic and then arranging or helping to

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Speaker 1: influence the visa application process to help Dr Meligan's girlfriends

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Speaker 1: get some visas, and so the challenges connecting those things.

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Speaker 1: But they certainly have a lot of allegations of gifts

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Speaker 1: uh and official acts. Bob Menendez is prominent attorney. Abby

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Speaker 1: Lowell said that acting out of friendship is not improper,

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Speaker 1: it's not corrupt, and it's certainly not a crime. Tell

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Speaker 1: us what the defense strategy is, Well, the defense is

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Speaker 1: taking the position that the case is really not about

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Speaker 1: what happened, but about why it up and and so

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Speaker 1: that means for the jury, this is all a question

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Speaker 1: of intent, and what the jurors are really asked to

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Speaker 1: do is get into the mind of both Center Menendez

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Speaker 1: and Dr Meligan and explore this relationship and try to

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Speaker 1: determine whether this was a true friendship at these gifts

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Speaker 1: were simply given out of their affection for one another,

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Speaker 1: or whether there was something more nefarious going on here,

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Speaker 1: whether there really was a quid pro pro relationship where

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Speaker 1: this stream of benefits were bestowed upon Center Menendez, with

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Speaker 1: the expectation by Dr Meligan that at some point in

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Speaker 1: the future center Menendez would intercede on his behalf to

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Speaker 1: benefit him financially. So, Jeff, how does the prosecution prove that?

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Speaker 1: Meligan's lawyer said, where's the evidence of why these men

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Speaker 1: did what they did. There's no corrupt agreement. Does the

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Speaker 1: prosecution have emails or anything substantial? Well, so that's you've

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Speaker 1: hit on the real challenge here. And a lot of

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Speaker 1: times what the prosecution will do is they'll have someone cooperating.

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Speaker 1: So in the trial of Governor McDonald in Virginia, the

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Speaker 1: prosecution had the person who had allegedly given the corrupt

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Speaker 1: bribes testifying for the prosecution, saying, this is why I

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Speaker 1: did it. I did it to get favors from the governor.

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Speaker 1: In this case, the prosecution does not have that. Uh.

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Speaker 1: And and it's important to note that the case law

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Speaker 1: and the Supreme Court has mentioned this that it's not

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Speaker 1: necessary for the prosecution to come forward to the jury

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Speaker 1: and say here is the explicit agreement between the two parties.

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Speaker 1: Where Dr Meligan in this case would have said, I'm

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Speaker 1: going to give you this money in exchange I want

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Speaker 1: these favors. The courts recognize that that's unrealistic and so

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Speaker 1: it's it's well established that the prosecution can establish the

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Speaker 1: agreement through circumstantial evidence, and there's even a famous piece

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Speaker 1: of the case law that talks about winks and nods

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Speaker 1: the government can point to kind of unspoken agreement, and

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Speaker 1: so that's what they're gonna do here. They're gonna try

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Speaker 1: to show that, you know, given the circumstantial evidence, the

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Speaker 1: size of the gifts, the timing of the gifts in

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Speaker 1: comparison to the actions that Senator Menendez allegedly took, and

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Speaker 1: that there isn't another reason for the senator to have

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Speaker 1: done this for someone who's not even a constituent, and

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Speaker 1: hope that the jury will from all the circumstances infer

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Speaker 1: an agreement, even if there's not any evidence of an

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Speaker 1: explicit or written agreement. That's what members of Congress do.

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Speaker 1: That phrase from Senator Robert Menendez, an attorney, seems to

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Speaker 1: be at the heart of the defense in the bribery case.

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Speaker 1: I've been talking with Robert Min's, a partner McCarter in English,

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Speaker 1: and Jeffrey Bellan, a professor at William and Mary Law

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Speaker 1: School about the case. Bob Lowell said that Menendez helped

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Speaker 1: Meligan by talking to bureaucrats, senators, and a cabinet secretary.

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Speaker 1: But he said none of that was improper because the

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Speaker 1: senator had intervened on behalf of others and he believed

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Speaker 1: in the merits of the policies he was advancing. Is

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Speaker 1: that a believable argument when so much money was involved. Well,

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Speaker 1: one of the central themes of the defense is going

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Speaker 1: to be what I would call sort of the public

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Speaker 1: policy defense. What they're trying to do is to convince

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Speaker 1: yours that the actions that were taken we're not really

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Speaker 1: driven by Centor Menendez intent to benefit his friend Dr Meligan,

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Speaker 1: but involved these larger policy issues such as over billing

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Speaker 1: by big pharmaceutical companies in connection with the medicare issue,

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Speaker 1: and that the port issue in the Dominican Republic that

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Speaker 1: Center Menendez got involved with, according to the government, to

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Speaker 1: benefit Dr Meligan, was really a broader national security issue.

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Speaker 1: So if they can convince us that these really weren't

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Speaker 1: actions motivated to benefit his friend, then the quid pro

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Speaker 1: quo argument is defeated by them, and they can convince

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Speaker 1: jurs is that this is simply a politician who's acting

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Speaker 1: in the public interest and who took actions only because

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Speaker 1: he believed they were the in the interests of his constituents.

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Speaker 1: Jeff The defense attorney Abby Lowell is a high profile

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Speaker 1: defense attorney. He got former Senator John Edwards off on

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Speaker 1: campaign finance violations by arguing the donors put up the

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Speaker 1: money out of personal friendship. Is that sort of echoing

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Speaker 1: what's happening here? Yes, I do think that that the

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Speaker 1: John Edwards cases is the closest comparator to this one,

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Speaker 1: particularly if you factor in the defense attorney, and so,

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Speaker 1: you know, I think that that's the idea. Can you

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Speaker 1: convince the jury that what was going on here was

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Speaker 1: not an exchange of money for official acts but some

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Speaker 1: other thing. And you know, obviously jurors are familiar with

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Speaker 1: the reasons that you might give someone money out of

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Speaker 1: friendship or you know, for other purposes, and if you

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Speaker 1: can fit it into that, then then you get an acquittal.

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Speaker 1: But the big question will Menendez take the stand in

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Speaker 1: his own defense? These jurors are used to hearing Menendez

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Speaker 1: speaking out on issues, and the judge will tell them

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Speaker 1: at the end of the trial not to draw any

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Speaker 1: conclusions if he doesn't, But will they draw them anyway, Well,

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Speaker 1: they'll be instructed, as you said, not to draw that conclusion.

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Speaker 1: Center Menendez has been very vocal, uh speaking to the

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Speaker 1: media in his own defense. My guess is in this case,

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Speaker 1: we will not see him take the stand because I

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Speaker 1: think the way the defense is laying its case out here,

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Speaker 1: they don't really need his testimony. What they're really trying

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Speaker 1: to argue is that the government has not been able

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Speaker 1: to prove its case, that there's not enough evidence there

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Speaker 1: that shows that the intent here was really a corrupt act,

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Speaker 1: and that this really was a case of friendship and

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Speaker 1: gifts being given out of friendship. There's really very little

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Speaker 1: that Center Menendez can add to that defense, and all

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Speaker 1: it would do would be to give prosecutors the opportunity

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Speaker 1: to run through their prosecution case again and go through

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Speaker 1: in in lurid detail all of these gifts that were

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Speaker 1: given to him. So I don't expect we'll see him testify. Jeff,

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Speaker 1: do you agree? Well? So, I mean this is I

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Speaker 1: think that Bob made the the that's the common sense

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Speaker 1: or that's the received wisdom on this. I think he's

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Speaker 1: laid it out really well. And so um I happen

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Speaker 1: to be in the camp of people that think the

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Speaker 1: jury really wants to hear from the defendant. And you know,

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Speaker 1: often in cases, defense attorneys are worried about putting a

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Speaker 1: defendant on the stand because they don't know how they'll

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Speaker 1: do in that kind of high pressure public setting. But

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Speaker 1: here you've got, you know, someone who's made a career

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Speaker 1: out of making big time speeches and things like that,

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Speaker 1: and so you know, I think, uh, that there's a

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Speaker 1: good argument to put him on the stand. Everything Bob

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Speaker 1: said is right though, and that's what you'd hear from

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Speaker 1: most most attorneys. Um, so the you know, the question.

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Speaker 1: Then the other piece of this, it's kind of interesting

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Speaker 1: to think about is that you could have made the

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Speaker 1: same argument I just made about John Edwards. I mean,

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Speaker 1: who would be better to put on the stand than him?

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Speaker 1: And Abyla won that case without putting him on the stand.

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Speaker 1: So I think Bob is right, Uh, probably, even though

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Speaker 1: my leanings are to put that that I would put

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Speaker 1: Menendez on the stand. Bob New Jersey's other senator, Corey Booker,

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Speaker 1: who has been supportive of Menendez, came the first day

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Speaker 1: of trial and sat behind him. Does that visual do

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Speaker 1: anything for jurors? Well, I think it's helpful to the defense.

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Speaker 1: It shows that Senator Booker, who's popular in New Jersey,

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Speaker 1: is supporting his fellow Senator Um. But by the time

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Speaker 1: this case goes to the jury, I think the fact

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Speaker 1: that Senator Menendez was there for the opening statements is

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Speaker 1: going to be something that they will have long forgotten.

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Speaker 1: I think in many ways, the most difficult issue here

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Speaker 1: for the defense is going to be to deal with

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Speaker 1: these lavish gifts, because all every person on that jury

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Speaker 1: is going to think to themselves, I have friends, but

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Speaker 1: I don't have any friends who have given me the

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Speaker 1: type of gifts here that were bestowed upon the Centator

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Speaker 1: of Menendez, and that is going to be the hurdle

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Speaker 1: that the defense is going to have to overcome if

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Speaker 1: they're going to get an acquittal here. Well, last question

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Speaker 1: about thirty seconds, which side would you rather be on

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Speaker 1: if you were doing the defense or the prosecution if

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Speaker 1: you were in court? Jeff I I I'm not going

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Speaker 1: to answer that question. I know that that that's that's

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Speaker 1: a good question. It's my favorite question. If I were

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Speaker 1: the host, I would ask, But if I'm the guest,

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Speaker 1: I'm not answering. I'll tell you after the Jerry returns

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Speaker 1: this verdict. Bob, do you want to take a take

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Speaker 1: a stroll down the lane there? You know, I think

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Speaker 1: this is I think this is a good case for

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Speaker 1: both sides. You know, as a defense lawyer, there's some

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Speaker 1: good issues here. They've got some good facts and they've

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Speaker 1: got some great legal issues to deal with on appeal

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Speaker 1: even if they lose here at the trial level. All right,

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Speaker 1: thank you both for being on Bloomberg Law, even though

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Speaker 1: you didn't answer my favorite question. That's Bob Men's a

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Speaker 1: partner mc carter in English and Jeffrey Bell and he

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Speaker 1: is a professor at William and Mary Law School. Coming

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Speaker 1: up on Bloomberg Law, Democratic Attorneys General will begin their

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Speaker 1: legal attack on President Trump's end of the DOCCA program.

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Speaker 1: What are the odds of success? And we'll go live

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Speaker 1: to the Rose Garden where President Donald Trump is going

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Speaker 1: to be appearing with the Emir of Kuwait. I'm June Grosso.

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Speaker 1: This is Bloomberg