1 00:00:03,240 --> 00:00:09,920 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:18,760 --> 00:00:22,599 Speaker 1: The sounds of baseball not only the national pastime and 3 00:00:22,680 --> 00:00:26,360 Speaker 1: a more than ten billion dollar industry, but also the 4 00:00:26,520 --> 00:00:29,920 Speaker 1: only sport in the country that's exempt from the anti 5 00:00:29,920 --> 00:00:33,519 Speaker 1: trust laws. And now some minor league teams are asking 6 00:00:33,560 --> 00:00:38,560 Speaker 1: the Supreme Court to eliminate baseball's anti trust exemption. Why, 7 00:00:38,800 --> 00:00:42,080 Speaker 1: as they put it in one brief enough. Already joining 8 00:00:42,080 --> 00:00:45,120 Speaker 1: me is anti trust expert Harry First, a professor at 9 00:00:45,200 --> 00:00:49,360 Speaker 1: NYU Law School. Harry tell us how baseball got this 10 00:00:49,560 --> 00:00:50,720 Speaker 1: anti trust exemption. 11 00:00:51,640 --> 00:00:55,880 Speaker 2: Well, this is one of the most reviled exemptions from 12 00:00:56,080 --> 00:01:00,560 Speaker 2: the point of view of antitrust lawyers unless they represent 13 00:01:00,840 --> 00:01:04,840 Speaker 2: baseball companies or teams or leagues, and even the courts 14 00:01:04,840 --> 00:01:10,160 Speaker 2: don't like it. So it came about originally because of 15 00:01:10,200 --> 00:01:14,640 Speaker 2: a decision in nineteen twenty two by the Supreme Court 16 00:01:14,800 --> 00:01:19,200 Speaker 2: called Federal Baseball. And this is an opinion written by 17 00:01:19,680 --> 00:01:25,399 Speaker 2: Justice Holmes Uliver Wendell Holmes distinguished jurists, and it was 18 00:01:25,520 --> 00:01:30,240 Speaker 2: an effort to actually push out some competing leagues. And 19 00:01:30,880 --> 00:01:33,959 Speaker 2: Holmes said that, well, the any trust laws don't cover this. 20 00:01:34,319 --> 00:01:40,800 Speaker 2: Baseball is neither commerce nor interstate commerce. It's just sport 21 00:01:41,200 --> 00:01:46,080 Speaker 2: and it just takes place locally. So even though players 22 00:01:46,280 --> 00:01:50,400 Speaker 2: even then traveled from state to state and there was 23 00:01:50,440 --> 00:01:55,600 Speaker 2: a lot of money involved, perhaps Justice Holmes as the 24 00:01:55,680 --> 00:01:59,640 Speaker 2: Boston Brahmin disdain baseball. It was sort of like us 25 00:01:59,680 --> 00:02:03,760 Speaker 2: now raised with a certain kind of entertainment reviewing video games. 26 00:02:03,840 --> 00:02:07,760 Speaker 2: What is that? And is there so much money involved? 27 00:02:07,760 --> 00:02:10,919 Speaker 2: Are you serious? So maybe that was a poem's reaction. 28 00:02:11,080 --> 00:02:13,200 Speaker 2: I don't know, But in any event, that was a 29 00:02:13,280 --> 00:02:17,359 Speaker 2: decision any trust laws didn't apply. So that's nineteen twenty two. 30 00:02:18,280 --> 00:02:23,080 Speaker 2: The Supreme Court reaffirmed that decision in a case called 31 00:02:23,080 --> 00:02:27,560 Speaker 2: Toolson in nineteen fifty three involving New York Yankees. My 32 00:02:27,840 --> 00:02:31,720 Speaker 2: memory is correct, and the court said, even though the 33 00:02:31,840 --> 00:02:35,600 Speaker 2: decision was sort of dubious when made, it's now precedent, 34 00:02:36,160 --> 00:02:40,800 Speaker 2: and all aspects of that decision had been undermined. Even 35 00:02:40,840 --> 00:02:44,080 Speaker 2: in the intervening period, the courts had a rather a 36 00:02:44,160 --> 00:02:48,160 Speaker 2: narrow conception of what constituted interstate commerce, perhaps in nineteen 37 00:02:48,200 --> 00:02:50,720 Speaker 2: twenty two, but it had expanded clearly in the New 38 00:02:50,760 --> 00:02:54,720 Speaker 2: Deal era, and any trust cases had gone along. And 39 00:02:55,120 --> 00:02:57,880 Speaker 2: there's no doubt that baseball should have been considered an 40 00:02:57,840 --> 00:03:02,520 Speaker 2: interstate commerce all along point a business, but the Court 41 00:03:02,560 --> 00:03:06,519 Speaker 2: said in business of baseball is exempt from any trust 42 00:03:06,560 --> 00:03:10,120 Speaker 2: laws from the Shermanac. And then the third case in 43 00:03:10,160 --> 00:03:13,760 Speaker 2: this is a case called Flood against Kune. This involved 44 00:03:13,840 --> 00:03:17,280 Speaker 2: Kurt Flood, who didn't want to be bound by what 45 00:03:17,600 --> 00:03:22,280 Speaker 2: was called the reserve clause, which prevented players once they 46 00:03:22,280 --> 00:03:25,640 Speaker 2: were under contract from going to some other team even 47 00:03:26,000 --> 00:03:29,520 Speaker 2: after the contract was over. And this was an opinion 48 00:03:29,560 --> 00:03:32,800 Speaker 2: written by Justice Blackman. This goes beyond it put of 49 00:03:32,800 --> 00:03:36,600 Speaker 2: any trust law. If you teach a course in law 50 00:03:36,640 --> 00:03:41,840 Speaker 2: school about precedent and the need to follow precedent, you 51 00:03:41,880 --> 00:03:45,160 Speaker 2: know you would want to teach this opinion because it's 52 00:03:45,200 --> 00:03:50,640 Speaker 2: a payon to baseball and the greats of baseball and 53 00:03:50,720 --> 00:03:54,800 Speaker 2: how they flourished under this system. I mean, it was 54 00:03:55,080 --> 00:03:59,440 Speaker 2: very clear that Harry Blackman was a great baseball fan 55 00:04:00,200 --> 00:04:03,400 Speaker 2: and loved all these players. And now you come along, 56 00:04:03,560 --> 00:04:06,760 Speaker 2: Kurt Flood, You're going to challenge the system. Give me 57 00:04:06,840 --> 00:04:11,080 Speaker 2: a break. You know, everyone prospered. So on the basis 58 00:04:11,120 --> 00:04:14,600 Speaker 2: of the doctrine of starry decisives, let the decision stand. 59 00:04:15,480 --> 00:04:20,640 Speaker 2: The Supreme Court refused to overrule Tulsen and Federal Baseball 60 00:04:20,680 --> 00:04:25,000 Speaker 2: behind it, saying no, we've had this exemption, this decision 61 00:04:25,080 --> 00:04:27,239 Speaker 2: too long, no matter what we think of it, legally 62 00:04:27,800 --> 00:04:31,000 Speaker 2: were bound. Now there's no one who will stand up 63 00:04:31,040 --> 00:04:35,920 Speaker 2: for this, as I said, except people who represent baseball teams. Now, 64 00:04:36,040 --> 00:04:39,400 Speaker 2: there is one final little bit of a change, which 65 00:04:39,440 --> 00:04:42,880 Speaker 2: is Congress passed the law in nineteen ninety eight called 66 00:04:42,880 --> 00:04:46,520 Speaker 2: the Kirk Flood Act, which took out of the exemption, 67 00:04:46,640 --> 00:04:51,440 Speaker 2: put back into anti trust any contracts involving the employment 68 00:04:51,480 --> 00:04:55,440 Speaker 2: of major league baseball players at the major league level, 69 00:04:55,800 --> 00:04:59,479 Speaker 2: So just for major league baseball players like Kurt Flood, 70 00:05:00,000 --> 00:05:02,640 Speaker 2: that would now be subject to sort of the normal 71 00:05:02,720 --> 00:05:05,080 Speaker 2: rules of anti trust and labor law for that matter. 72 00:05:05,520 --> 00:05:09,560 Speaker 2: But these clauses aren't used anymore anyway, so it's sort 73 00:05:09,600 --> 00:05:14,120 Speaker 2: of in some sense factually irrelevant, but maybe a little 74 00:05:14,240 --> 00:05:18,679 Speaker 2: legal issue. Congress left everything else that this law doesn't 75 00:05:18,680 --> 00:05:23,000 Speaker 2: apply to anything else involving baseball. So in effect, the exemption, 76 00:05:23,520 --> 00:05:28,560 Speaker 2: which Congress never approved, very different from all other exemptions 77 00:05:28,760 --> 00:05:32,239 Speaker 2: that we have. Virtually all other exemptions Congress never approved 78 00:05:32,240 --> 00:05:35,280 Speaker 2: this one. The exemption continues. 79 00:05:35,400 --> 00:05:39,880 Speaker 1: Does baseball operate like a monopoly? And is that unlike 80 00:05:40,040 --> 00:05:42,440 Speaker 1: football or basketball or hockey. 81 00:05:43,240 --> 00:05:47,520 Speaker 2: So we could argue whether football and hockey and all 82 00:05:47,560 --> 00:05:52,040 Speaker 2: of those operate like monopolies, separate argument. At least they 83 00:05:52,080 --> 00:05:56,839 Speaker 2: are all subject to the anti trust laws. So all 84 00:05:57,160 --> 00:06:03,040 Speaker 2: sports professional the NCAA, you know, college sports, all sports 85 00:06:03,360 --> 00:06:06,359 Speaker 2: have been subject to the anti trustlaws. In the court, 86 00:06:07,120 --> 00:06:13,680 Speaker 2: sport after sport will say, you know, baseball is its 87 00:06:13,720 --> 00:06:19,160 Speaker 2: own thing. You're covered. So they are not free to 88 00:06:19,240 --> 00:06:22,760 Speaker 2: violated any trust laws. Now, whether what they do is 89 00:06:22,880 --> 00:06:26,160 Speaker 2: legal under d any trust laws is another story. And 90 00:06:26,880 --> 00:06:30,640 Speaker 2: your quest is a really good one because in the 91 00:06:30,680 --> 00:06:35,480 Speaker 2: most recent Supreme Court case involving organized sports, which involved 92 00:06:35,560 --> 00:06:41,359 Speaker 2: the NCAA with NCAA against Allston and the effort of 93 00:06:41,400 --> 00:06:45,720 Speaker 2: the NCAA to suppress the amounts of compensation to quote 94 00:06:45,760 --> 00:06:49,720 Speaker 2: what they like to call student athletes, and basically they 95 00:06:49,720 --> 00:06:51,840 Speaker 2: wanted to argue in the Supreme Court that you should 96 00:06:51,880 --> 00:06:54,680 Speaker 2: really treat us differently, and the Supreme Court wrote, no, 97 00:06:54,800 --> 00:06:57,320 Speaker 2: we're not treating you differently. You don't have any reason to. 98 00:06:58,080 --> 00:07:02,080 Speaker 2: And Justice Dorsach for a majority sort of dropped a 99 00:07:02,080 --> 00:07:05,360 Speaker 2: little hint about this and mentioned that the Supreme Court 100 00:07:05,400 --> 00:07:08,720 Speaker 2: in the past had balied this is his word with 101 00:07:08,760 --> 00:07:12,480 Speaker 2: what looks like an exemption for professional baseball. But we're 102 00:07:12,520 --> 00:07:15,360 Speaker 2: not going to give it to you, folks. So you 103 00:07:16,120 --> 00:07:19,800 Speaker 2: andCA are fully subject to the any trust laws, and 104 00:07:20,560 --> 00:07:24,280 Speaker 2: your conduct is subject to any trust laws. So the 105 00:07:24,400 --> 00:07:27,600 Speaker 2: court seems to have recognized, as this decided in twenty 106 00:07:27,640 --> 00:07:32,840 Speaker 2: twenty one again, that baseball is a bit of an aberration. 107 00:07:33,320 --> 00:07:36,600 Speaker 1: In this case, you have minor league teams who are 108 00:07:36,640 --> 00:07:41,800 Speaker 1: eliminated alleging a violation of the Sherman Act caused by 109 00:07:41,800 --> 00:07:46,200 Speaker 1: a horizontal agreement between competitors that has artificially reduced and 110 00:07:46,320 --> 00:07:50,160 Speaker 1: capped output in the market for MLB teams affiliated with 111 00:07:50,320 --> 00:07:53,960 Speaker 1: MLB clubs, and a federal judge dismissed it because of 112 00:07:54,560 --> 00:07:59,200 Speaker 1: the baseball exemption right, Federal Judge Andrew Carter said, plaintiffs 113 00:07:59,200 --> 00:08:01,920 Speaker 1: believe that the Supreme Court is poised to knock out 114 00:08:01,960 --> 00:08:05,200 Speaker 1: the exemption, like a boxer waiting to launch a left 115 00:08:05,200 --> 00:08:09,720 Speaker 1: hook after her opponent tosses out a torbid jab. It's possible. 116 00:08:10,080 --> 00:08:14,720 Speaker 1: So this would squarely present the baseball exemption to the 117 00:08:14,760 --> 00:08:15,760 Speaker 1: Supreme Court. 118 00:08:15,960 --> 00:08:18,760 Speaker 2: So that's correct, that's what's seeing up the interest at 119 00:08:18,760 --> 00:08:21,200 Speaker 2: the moment. The case went to the Court of Appeals 120 00:08:21,240 --> 00:08:25,360 Speaker 2: which just sort of summarily agreed with the trial court. 121 00:08:25,720 --> 00:08:29,440 Speaker 2: Great quote that you read there. And now the minor 122 00:08:29,520 --> 00:08:34,160 Speaker 2: league teams who alleged a violation by being excluded from 123 00:08:34,480 --> 00:08:37,920 Speaker 2: an agreement that the majors have made which limit the 124 00:08:38,000 --> 00:08:41,160 Speaker 2: number of minor league teams they can affiliate with, are 125 00:08:41,200 --> 00:08:44,960 Speaker 2: now asking the Supreme Court to take the case. So 126 00:08:45,800 --> 00:08:50,280 Speaker 2: it's not clear whether the Court will actually take the case. 127 00:08:50,480 --> 00:08:52,760 Speaker 2: The Court has discretion as to whether they take it 128 00:08:52,880 --> 00:08:55,640 Speaker 2: or not, So the first question is will they take it, 129 00:08:56,040 --> 00:08:59,680 Speaker 2: And presumably if the Court takes it, it means that 130 00:08:59,720 --> 00:09:05,000 Speaker 2: they're interested in overruling the three cases that I mentioned. 131 00:09:05,280 --> 00:09:10,920 Speaker 2: And the Supreme Court, you know, doesn't lightly overrule cases. 132 00:09:11,320 --> 00:09:17,120 Speaker 1: Well maybe I should say recently, yeah, And the. 133 00:09:17,000 --> 00:09:23,280 Speaker 2: Court has overruled on occasion longstanding any trust precedent that 134 00:09:23,400 --> 00:09:28,200 Speaker 2: parties had followed for many years. The case is called Legion, 135 00:09:28,559 --> 00:09:32,040 Speaker 2: which involved the legality of setting resale prices. The Supreme 136 00:09:32,080 --> 00:09:36,120 Speaker 2: Court overruled an older case which had stood for ninety years, 137 00:09:36,160 --> 00:09:40,960 Speaker 2: even longer than Federal baseball. So it's possible that the 138 00:09:41,000 --> 00:09:45,840 Speaker 2: Court would would take this case, but I would wait 139 00:09:45,920 --> 00:09:51,200 Speaker 2: to see if the Justice Department expresses desire to have 140 00:09:51,280 --> 00:09:55,560 Speaker 2: the court take the case and overrule these other three cases. 141 00:09:55,760 --> 00:10:00,360 Speaker 2: So I'm not certain whether the Justice Department will away 142 00:10:00,360 --> 00:10:03,199 Speaker 2: in on this case. They did already in this particular 143 00:10:03,240 --> 00:10:05,800 Speaker 2: case in the district court and in the Court of Appeals, 144 00:10:06,200 --> 00:10:09,760 Speaker 2: but they did not ask the courts which couldn't actually 145 00:10:10,160 --> 00:10:12,200 Speaker 2: to you know, ignore the exemption. 146 00:10:13,160 --> 00:10:16,040 Speaker 1: Do you think this exemption is lasted because baseball is 147 00:10:16,080 --> 00:10:18,360 Speaker 1: seen as you know, the national sport. 148 00:10:19,000 --> 00:10:23,680 Speaker 2: The exemption is a sport in itself. You know, that's 149 00:10:23,679 --> 00:10:26,720 Speaker 2: a very good question. So there's been a fair amount 150 00:10:26,760 --> 00:10:33,360 Speaker 2: of litigation around this issue, with Litigan's trying to narrow it, 151 00:10:33,679 --> 00:10:37,079 Speaker 2: you know, to keep it very closely read as an 152 00:10:37,120 --> 00:10:40,720 Speaker 2: exemption as they you know, bring cases in lower courts 153 00:10:40,760 --> 00:10:44,760 Speaker 2: that you know, are forced to follow the three cases 154 00:10:44,800 --> 00:10:49,520 Speaker 2: that I mentioned. So there has been an effort by 155 00:10:49,600 --> 00:10:52,480 Speaker 2: parties to do something about it, not an effort by 156 00:10:52,520 --> 00:10:54,760 Speaker 2: the government to do something about it. As I think 157 00:10:54,800 --> 00:10:57,800 Speaker 2: about it, you know, not to tuch this positive. So 158 00:10:58,080 --> 00:11:00,840 Speaker 2: why has it lasted? Well, you know, part of it 159 00:11:00,920 --> 00:11:06,520 Speaker 2: is a very basic theory of story decisives of following precedent. 160 00:11:06,760 --> 00:11:09,120 Speaker 2: Courts are forced to do that, and the Supreme Court 161 00:11:09,520 --> 00:11:12,840 Speaker 2: hasn't paid attention to this area that much, and for 162 00:11:12,880 --> 00:11:15,800 Speaker 2: a while wasn't paying much attention to anti trust. Now 163 00:11:15,840 --> 00:11:19,400 Speaker 2: that's sort of changed recently, so maybe now the court 164 00:11:19,440 --> 00:11:23,440 Speaker 2: will have an appetite to look at it. They've messed 165 00:11:23,480 --> 00:11:26,600 Speaker 2: around with other sports, why not baseball. 166 00:11:26,640 --> 00:11:30,560 Speaker 1: In twenty twenty two, the MLB Commissioner wrote to the 167 00:11:30,559 --> 00:11:34,160 Speaker 1: Senate Judiciary Committee, who is hearing this issue, that players 168 00:11:34,200 --> 00:11:38,240 Speaker 1: could lose job opportunities and communities could lose minor league 169 00:11:38,240 --> 00:11:41,760 Speaker 1: teams if baseball is stripped of its anti trust exemption. 170 00:11:42,280 --> 00:11:44,320 Speaker 1: But let's say this does go to Supreme Court, what 171 00:11:44,440 --> 00:11:46,280 Speaker 1: kind of an argument could they make that they should 172 00:11:46,320 --> 00:11:48,000 Speaker 1: still have an anti trust exemption? 173 00:11:48,440 --> 00:11:51,160 Speaker 2: Yes, in a case in which communities are losing their 174 00:11:51,760 --> 00:11:55,320 Speaker 2: minor league teams exactly because without this asciliation they don't 175 00:11:55,320 --> 00:11:58,400 Speaker 2: have the financial support to continue. Well, they're not going 176 00:11:58,440 --> 00:12:01,839 Speaker 2: to make that argument, I guess this case. Presumably they would. 177 00:12:01,960 --> 00:12:05,240 Speaker 2: They would pitch a lot of it on stability and 178 00:12:05,760 --> 00:12:11,440 Speaker 2: expectations that parties have based their relationships over the years 179 00:12:11,960 --> 00:12:18,160 Speaker 2: on operating collectively. Leagues need to operate collectively, and this would, 180 00:12:18,280 --> 00:12:22,560 Speaker 2: you know, subject this sport to needless litigation, which might 181 00:12:22,679 --> 00:12:27,600 Speaker 2: in the end result in massive costs and not produce 182 00:12:27,679 --> 00:12:30,920 Speaker 2: better baseball. It's a hard argument to make when every 183 00:12:30,920 --> 00:12:35,080 Speaker 2: other sport is subject to any trust laws. So I 184 00:12:35,120 --> 00:12:37,800 Speaker 2: think when it gets the Supreme Court, they'll have to 185 00:12:37,880 --> 00:12:41,280 Speaker 2: look for things which explains for some reason why this 186 00:12:41,440 --> 00:12:46,400 Speaker 2: sport should be sort of outside normal rules of competition law. 187 00:12:46,440 --> 00:12:50,640 Speaker 2: And the Court, once presented with that sort of actual argument, 188 00:12:50,760 --> 00:12:56,240 Speaker 2: will often say, you know, hey, not our call, pardon joke, 189 00:12:56,640 --> 00:13:00,560 Speaker 2: not our coal. Congress generally says, you know that we 190 00:13:00,679 --> 00:13:04,079 Speaker 2: like competition, and if you think that competition is not 191 00:13:04,240 --> 00:13:07,360 Speaker 2: the way to go here, go to Congress. You've never 192 00:13:07,440 --> 00:13:11,640 Speaker 2: done that. You've never gotten congressional approval to this. You know, 193 00:13:11,800 --> 00:13:15,280 Speaker 2: lots of other industries have. So if you want to 194 00:13:15,280 --> 00:13:18,440 Speaker 2: make your case, make it there, don't make it here. 195 00:13:18,520 --> 00:13:23,400 Speaker 2: The normal rule is competition, and we don't really like exemptions. 196 00:13:23,880 --> 00:13:26,320 Speaker 2: So I think maybe in the end the question is 197 00:13:26,320 --> 00:13:28,960 Speaker 2: going to be whether the Supreme Court thinks this is 198 00:13:29,040 --> 00:13:32,480 Speaker 2: important enough to take or you know, let's just sort 199 00:13:32,520 --> 00:13:36,480 Speaker 2: of rock along this spike. Certainly, baseball is a big 200 00:13:36,600 --> 00:13:41,680 Speaker 2: enough industry, and you know, normally we like commercial relationships, 201 00:13:41,720 --> 00:13:45,959 Speaker 2: particularly when lots of money's involved and lots of consumer interests, 202 00:13:46,080 --> 00:13:50,960 Speaker 2: lots of labor interests, frankly community interests. You know, normally 203 00:13:51,000 --> 00:13:53,920 Speaker 2: we like that to be decided by marketplace. 204 00:13:54,200 --> 00:13:57,320 Speaker 1: The best argument I thought was the minor league teams, 205 00:13:57,640 --> 00:14:00,440 Speaker 1: in a brief to the Second Circuit, said, but the 206 00:14:00,440 --> 00:14:03,280 Speaker 1: court should, if it sees fit, dispatch this case to 207 00:14:03,320 --> 00:14:06,480 Speaker 1: the Supreme Court, where the message attached enough already. 208 00:14:06,880 --> 00:14:11,240 Speaker 2: Well, you know there's precedent for courts of appeals to 209 00:14:11,360 --> 00:14:14,040 Speaker 2: do just that, to sort of say, look, our hands 210 00:14:14,040 --> 00:14:16,640 Speaker 2: are tied. This is a terrible result, but our hands 211 00:14:16,640 --> 00:14:19,840 Speaker 2: are tied, and sort of say, please take this now. 212 00:14:20,000 --> 00:14:23,520 Speaker 2: The Second Circuit didn't quite do that, actually, I mean, 213 00:14:23,560 --> 00:14:27,360 Speaker 2: they could have gone through the reasons. And there are 214 00:14:27,400 --> 00:14:30,600 Speaker 2: opinions like this in other areas of any trust, going 215 00:14:30,680 --> 00:14:33,760 Speaker 2: through the reasons for why this is so out of step. 216 00:14:34,400 --> 00:14:36,840 Speaker 2: Commentators have written about this, there are books on this, 217 00:14:37,440 --> 00:14:42,280 Speaker 2: uniformly condemned it, and you know why. They say it 218 00:14:42,320 --> 00:14:46,880 Speaker 2: would only help fans and everybody except maybe the owners 219 00:14:46,880 --> 00:14:50,840 Speaker 2: of these franchises. But owners of sports franchises seem to 220 00:14:50,840 --> 00:14:53,360 Speaker 2: be doing pretty darn well even when the anti trust 221 00:14:53,360 --> 00:14:57,320 Speaker 2: wall was applying, So they could have done more. But 222 00:14:57,560 --> 00:15:00,000 Speaker 2: I'm actually waiting to see what the Justice departm. 223 00:15:01,000 --> 00:15:03,600 Speaker 1: I do think they need a sports case this term. 224 00:15:03,840 --> 00:15:06,800 Speaker 1: Thanks so much, Harry, it's always a delight. That's Professor 225 00:15:06,840 --> 00:15:10,880 Speaker 1: Harry First of NYU Law School. Coming up next, we'll 226 00:15:10,880 --> 00:15:14,440 Speaker 1: look at the charges against New Jersey Senator Bob Menendez. 227 00:15:14,800 --> 00:15:16,880 Speaker 1: I'm June Grosso and you're listening to Bloomberg. 228 00:15:17,200 --> 00:15:21,240 Speaker 3: Everything I've accomplished, I've worked for despite the naysayers and 229 00:15:21,280 --> 00:15:25,960 Speaker 3: everyone who has underestimated me. I recognize this will be 230 00:15:25,960 --> 00:15:29,520 Speaker 3: the biggest fight yet, but as I have stated throughout 231 00:15:29,560 --> 00:15:32,840 Speaker 3: this whole process, I firmly believe that when all the 232 00:15:32,880 --> 00:15:36,960 Speaker 3: facts are presented, not only will I be exonerated, but 233 00:15:37,040 --> 00:15:39,520 Speaker 3: I still will be the New Jersey's senior senator. 234 00:15:39,760 --> 00:15:43,040 Speaker 1: New Jersey Senator Bob Menendez told the public he was 235 00:15:43,120 --> 00:15:47,120 Speaker 1: not guilty of bribery and corruption charges and entered a 236 00:15:47,200 --> 00:15:51,480 Speaker 1: not guilty plea in court today. The Democratic senator has 237 00:15:51,520 --> 00:15:55,760 Speaker 1: faced corruption charges before, his last trial, ending with a 238 00:15:55,840 --> 00:16:00,440 Speaker 1: deadlock jury in twenty seventeen, but this time it appears different, 239 00:16:00,640 --> 00:16:04,440 Speaker 1: and his fellow Democratic senators are calling on him to resign, 240 00:16:05,000 --> 00:16:08,720 Speaker 1: including New Jersey Senator Cory Booker, who said the indictment 241 00:16:08,760 --> 00:16:14,440 Speaker 1: showed shocking allegations of corruption and specific disturbing details of wrongdoing. 242 00:16:15,160 --> 00:16:18,800 Speaker 1: The office of the Manhattan US Attorney, Damian Williams brought 243 00:16:18,840 --> 00:16:19,520 Speaker 1: the charges. 244 00:16:19,960 --> 00:16:23,600 Speaker 4: The indictment alleges that through that relationship, the senator and 245 00:16:23,680 --> 00:16:27,080 Speaker 4: his wife accepted hundreds of thousands of dollars of bribes 246 00:16:27,560 --> 00:16:30,840 Speaker 4: in exchange for Senator Menendez using his power and influence 247 00:16:31,320 --> 00:16:35,720 Speaker 4: to protect and to enrich those businessmen and to benefit 248 00:16:35,760 --> 00:16:36,960 Speaker 4: the government of Egypt. 249 00:16:37,320 --> 00:16:40,080 Speaker 1: And there were pictures of some of the evidence seized 250 00:16:40,080 --> 00:16:43,240 Speaker 1: from Menendez his home, the gold bars worth more than 251 00:16:43,280 --> 00:16:47,160 Speaker 1: one hundred thousand dollars, nearly five hundred thousand dollars in 252 00:16:47,320 --> 00:16:51,360 Speaker 1: cash stoffed in envelopes and hidden in clothes and closets, 253 00:16:51,600 --> 00:16:55,640 Speaker 1: and the Mercedes convertible. Joining me is former federal prosecutor 254 00:16:55,720 --> 00:16:59,800 Speaker 1: Jennifer Rogers, a lecturer in law at Columbia Law School. 255 00:17:00,400 --> 00:17:06,000 Speaker 1: The allegations against Menendez were stunning to many people, So 256 00:17:06,080 --> 00:17:07,080 Speaker 1: tell us about them. 257 00:17:07,720 --> 00:17:11,440 Speaker 5: Well, he's charged in three counts of bribery. They basically 258 00:17:11,880 --> 00:17:15,480 Speaker 5: used the same facts to charge it, using three different statues, 259 00:17:15,560 --> 00:17:18,840 Speaker 5: kind of a belt and suspenders approach. But it's effectively 260 00:17:19,040 --> 00:17:23,399 Speaker 5: that he did favors official acts in his role as 261 00:17:24,000 --> 00:17:27,400 Speaker 5: senator and as chair of the Foreign Relations Committee for 262 00:17:27,800 --> 00:17:31,560 Speaker 5: these three businessmen who then paid him for those favors 263 00:17:31,560 --> 00:17:36,240 Speaker 5: and cash and gold bars and a Mercedes convertible and 264 00:17:36,440 --> 00:17:37,119 Speaker 5: some other stuff. 265 00:17:37,320 --> 00:17:40,560 Speaker 1: The one hundred thousand dollars in gold bars sort of stands 266 00:17:40,600 --> 00:17:44,159 Speaker 1: out because who has gold bars? And add to that 267 00:17:44,320 --> 00:17:47,320 Speaker 1: his Google search for how much is one kilo of 268 00:17:47,359 --> 00:17:52,399 Speaker 1: gold worth? Do you think the prosecutors framed this in 269 00:17:52,440 --> 00:17:55,320 Speaker 1: a way to bring out the dramatic in it. 270 00:17:56,200 --> 00:17:58,600 Speaker 5: Well, you know, there's always a little bit of flair 271 00:17:58,680 --> 00:18:01,720 Speaker 5: for the drama, I think. You know, jackets stuffed with 272 00:18:01,920 --> 00:18:05,000 Speaker 5: cash too has a sort of flare that looks good 273 00:18:05,040 --> 00:18:08,040 Speaker 5: in the photos too. But you know, really, prosecutors have 274 00:18:08,119 --> 00:18:11,399 Speaker 5: to prove three things. They have to prove that something 275 00:18:11,440 --> 00:18:14,160 Speaker 5: of value was given, and that's the point of saying 276 00:18:14,600 --> 00:18:18,440 Speaker 5: this cash was found, the gold bars, the car. They 277 00:18:18,480 --> 00:18:22,040 Speaker 5: have to prove that official acts by the public official 278 00:18:22,119 --> 00:18:24,640 Speaker 5: were promised or given. And then they have to prove 279 00:18:24,720 --> 00:18:27,919 Speaker 5: the quid propo the connection between the two things. So 280 00:18:28,280 --> 00:18:31,280 Speaker 5: you know, prosecutors have to prove all three of those things. 281 00:18:31,280 --> 00:18:33,560 Speaker 5: So they're going to be careful to make sure to 282 00:18:33,640 --> 00:18:35,880 Speaker 5: do that. But I think, you know, they just took 283 00:18:35,920 --> 00:18:38,960 Speaker 5: advantage of the fact that this is really a textbook 284 00:18:39,320 --> 00:18:43,399 Speaker 5: bribery case. You so clearly have all three of those things, 285 00:18:43,760 --> 00:18:46,119 Speaker 5: and it's just so obvious. I mean, who keeps that 286 00:18:46,240 --> 00:18:48,480 Speaker 5: kind of cash around? Who keeps it in that way? 287 00:18:48,520 --> 00:18:51,439 Speaker 5: You know, not in a safe, stuffed in jackets and things. 288 00:18:51,840 --> 00:18:55,119 Speaker 5: So I just think it was so photogenic. I guess, 289 00:18:55,160 --> 00:18:58,000 Speaker 5: if you will, just such a kind of textbook, quintessential 290 00:18:58,040 --> 00:19:00,760 Speaker 5: bribery case that it makes it easy to be a 291 00:19:00,760 --> 00:19:01,919 Speaker 5: little bit dramatic with it. 292 00:19:03,000 --> 00:19:06,760 Speaker 1: Tell me what you think of Menandez's explanation for the 293 00:19:07,000 --> 00:19:09,879 Speaker 1: nearly five hundred thousand dollars in cash he had in 294 00:19:09,920 --> 00:19:12,000 Speaker 1: the house for thirty years. 295 00:19:12,520 --> 00:19:16,080 Speaker 3: I have withdrawn thousands of dollars in cash from my 296 00:19:16,200 --> 00:19:20,800 Speaker 3: personal savings account, which I have kept for emergencies and 297 00:19:20,880 --> 00:19:24,760 Speaker 3: because of the history of my family facing confiscation in Cuba. 298 00:19:25,400 --> 00:19:28,959 Speaker 3: Now this may seem old fashioned, but these were moneys 299 00:19:29,040 --> 00:19:32,880 Speaker 3: drawn from my personal savings account based on the income 300 00:19:32,920 --> 00:19:36,800 Speaker 3: that I have lawfully derived over those thirty years. 301 00:19:37,440 --> 00:19:40,320 Speaker 5: Yeah, that's just silly. I mean, he's really just begging 302 00:19:40,359 --> 00:19:44,840 Speaker 5: them to do what would be called an unexplained wealth analysis, right, like, oh, really, 303 00:19:44,920 --> 00:19:48,119 Speaker 5: that's all his legitimate money from his paychecks. All right, Well, 304 00:19:48,200 --> 00:19:50,480 Speaker 5: let's look at what his paychecks are and what other 305 00:19:50,600 --> 00:19:53,600 Speaker 5: means he has. I mean, is he independently wealthy? Does 306 00:19:53,640 --> 00:19:57,040 Speaker 5: he have major investments that he converted to cash? You know, 307 00:19:57,119 --> 00:19:59,760 Speaker 5: what is the explanation for having that kind of cash 308 00:19:59,760 --> 00:20:01,720 Speaker 5: in the first place when you look at his bank 309 00:20:01,720 --> 00:20:03,960 Speaker 5: accounts and how much money he makes being a senator. 310 00:20:04,359 --> 00:20:06,359 Speaker 5: And I don't think it's going to stack up. So 311 00:20:06,720 --> 00:20:09,879 Speaker 5: I doubt that that defense, well he kind of offered 312 00:20:09,880 --> 00:20:12,040 Speaker 5: it in the first instance, is going to make its 313 00:20:12,119 --> 00:20:14,800 Speaker 5: way into the trial. I think that they'll have to 314 00:20:14,840 --> 00:20:17,439 Speaker 5: focus on other things if they end up actually taking 315 00:20:17,480 --> 00:20:18,040 Speaker 5: this to trial. 316 00:20:18,359 --> 00:20:20,920 Speaker 1: So what struck me? And you know, maybe this happens 317 00:20:20,920 --> 00:20:24,600 Speaker 1: more often than I know, But how often do the 318 00:20:24,640 --> 00:20:28,959 Speaker 1: FEDS test money for fingerprints and DNA especially? 319 00:20:30,440 --> 00:20:30,680 Speaker 3: Yeah? 320 00:20:30,760 --> 00:20:33,679 Speaker 5: Not very often. Yeah, I understand that there was some 321 00:20:33,880 --> 00:20:36,720 Speaker 5: DNA sound on I think on an envelope that some 322 00:20:36,840 --> 00:20:39,040 Speaker 5: of the money was in. You know, it's not a 323 00:20:39,080 --> 00:20:43,359 Speaker 5: great conductor of fingerprints. You know, metal and other surfaces 324 00:20:43,400 --> 00:20:46,240 Speaker 5: are much better. But you really do want to try 325 00:20:46,280 --> 00:20:49,960 Speaker 5: if you can to establish the connection between the bribes 326 00:20:50,040 --> 00:20:52,359 Speaker 5: and the people who were giving the bribes. So in 327 00:20:52,400 --> 00:20:54,640 Speaker 5: this case, it makes sense to test if you think 328 00:20:54,680 --> 00:20:58,040 Speaker 5: you can get something like fingerprints, and it worked. They 329 00:20:58,040 --> 00:21:01,560 Speaker 5: were able to establish a link between that particular bunch 330 00:21:01,600 --> 00:21:04,280 Speaker 5: of money and one of the business men who was 331 00:21:04,320 --> 00:21:06,959 Speaker 5: one of the bribe wars and co defendants, so it 332 00:21:07,000 --> 00:21:07,560 Speaker 5: worked for them. 333 00:21:07,960 --> 00:21:10,640 Speaker 1: Is the toughest part of this case for the prosecution 334 00:21:10,840 --> 00:21:12,640 Speaker 1: to prove the quid pro quo. 335 00:21:13,280 --> 00:21:16,000 Speaker 5: I think actually in this case. I mean that often 336 00:21:16,160 --> 00:21:18,560 Speaker 5: is the toughest I think in this case because they 337 00:21:18,600 --> 00:21:21,800 Speaker 5: have such a wealth of evidence with the text that 338 00:21:22,200 --> 00:21:25,359 Speaker 5: they recovered that they I think did a wire tap 339 00:21:25,440 --> 00:21:27,880 Speaker 5: on that really sets out the scheme in the back 340 00:21:27,880 --> 00:21:30,520 Speaker 5: and forth. So I think the most challenging thing in 341 00:21:30,560 --> 00:21:34,119 Speaker 5: this case is actually proving the official acts that the 342 00:21:34,160 --> 00:21:37,919 Speaker 5: things that Menendez did and promised to do for the 343 00:21:37,960 --> 00:21:41,720 Speaker 5: bribe Wars his co defendants were actually technically official acts. 344 00:21:41,800 --> 00:21:44,879 Speaker 5: Because over the years, the last ten or so years, 345 00:21:44,880 --> 00:21:47,879 Speaker 5: the Supreme Court really has narrowed what that means to 346 00:21:47,960 --> 00:21:51,119 Speaker 5: be an official act, and we don't yet exactly know 347 00:21:51,200 --> 00:21:54,440 Speaker 5: the outside contours of that because you know, every time 348 00:21:54,480 --> 00:21:57,480 Speaker 5: you litigate one of these cases and the Supreme Court 349 00:21:57,520 --> 00:21:59,760 Speaker 5: speaks on it, then you kind of know on that 350 00:21:59,800 --> 00:22:02,600 Speaker 5: particular set of facts. So you know whether or not 351 00:22:02,760 --> 00:22:05,199 Speaker 5: every single thing that Menendez did and agreed to do 352 00:22:05,359 --> 00:22:08,920 Speaker 5: will be ultimately deemed an official act under the Supreme 353 00:22:09,000 --> 00:22:13,040 Speaker 5: Court's version of that is undetermined. I still think they 354 00:22:13,040 --> 00:22:15,040 Speaker 5: have a strong case. I think many of the actions 355 00:22:15,080 --> 00:22:17,439 Speaker 5: are clearly official acts. But that's where it gets a 356 00:22:17,680 --> 00:22:20,880 Speaker 5: little bit muddy on the edges about what they can 357 00:22:20,880 --> 00:22:21,920 Speaker 5: try to challenge. 358 00:22:22,200 --> 00:22:26,720 Speaker 1: So he's also accused of giving Egyptian officials highly sensitive information. 359 00:22:27,520 --> 00:22:31,080 Speaker 1: Is that part of the charges or is that just background? 360 00:22:32,119 --> 00:22:35,440 Speaker 5: So that's a really interesting piece of this. They did 361 00:22:35,520 --> 00:22:39,480 Speaker 5: not charge him with being a foreign agent or anything 362 00:22:39,960 --> 00:22:42,879 Speaker 5: that would require them to prove that he basically was 363 00:22:42,960 --> 00:22:46,919 Speaker 5: acting and he just interests against the US's interests. It 364 00:22:47,000 --> 00:22:48,920 Speaker 5: is a piece of evidence in the bribery case because 365 00:22:48,920 --> 00:22:51,280 Speaker 5: it's one of the things that he did for them, right, 366 00:22:51,320 --> 00:22:54,840 Speaker 5: one of the things that he gave them was this information, 367 00:22:55,080 --> 00:22:57,879 Speaker 5: and they bribed him for it. They gave him money 368 00:22:57,960 --> 00:23:00,000 Speaker 5: or you know, whatever the case may be. In that particule, 369 00:23:00,000 --> 00:23:02,600 Speaker 5: regular instance, they give him a bribe for that information. 370 00:23:02,760 --> 00:23:05,160 Speaker 5: So it does come in. It's part of the bribery case, 371 00:23:05,200 --> 00:23:09,159 Speaker 5: but it's not charged separately in terms of like a 372 00:23:09,200 --> 00:23:12,000 Speaker 5: foreign agent charge or anything like that. And I think 373 00:23:12,040 --> 00:23:16,399 Speaker 5: prosecutors were very smart about that, because charging that kind 374 00:23:16,560 --> 00:23:21,960 Speaker 5: of case leads to all sorts of complications with classified information, 375 00:23:22,560 --> 00:23:26,040 Speaker 5: makes discovery more complicated, makes the trial more complicated. They 376 00:23:26,160 --> 00:23:31,200 Speaker 5: charged it just lean and mean, just the bribery, very strong, unclassified, 377 00:23:31,359 --> 00:23:33,760 Speaker 5: easy to do discovery, easy to do the trial if 378 00:23:33,800 --> 00:23:35,480 Speaker 5: it comes to that. So I think that was a 379 00:23:35,480 --> 00:23:36,880 Speaker 5: wise strategic decision. 380 00:23:37,280 --> 00:23:40,680 Speaker 1: Do you think the Justice Department learned from the last 381 00:23:40,720 --> 00:23:44,000 Speaker 1: trial and didn't want the same thing to happen twice. 382 00:23:45,080 --> 00:23:48,480 Speaker 5: Well, it's a different group of prosecutors. This prosecution is 383 00:23:48,480 --> 00:23:51,600 Speaker 5: out of the Manhattan US Attorney's Office. The other one 384 00:23:51,640 --> 00:23:54,399 Speaker 5: was out of Main Justice, So it's not the same people. 385 00:23:54,440 --> 00:23:57,800 Speaker 5: But sure every time you see a case falter, you 386 00:23:58,240 --> 00:24:01,760 Speaker 5: learn from that experience and you know the thing is 387 00:24:01,840 --> 00:24:05,000 Speaker 5: here is really just a completely separate set of facts. 388 00:24:05,040 --> 00:24:09,360 Speaker 5: You know, last time the charges involved someone allegedly bribing Menendez, 389 00:24:09,359 --> 00:24:12,080 Speaker 5: who was a close personal friend, and ultimately I think 390 00:24:12,160 --> 00:24:15,720 Speaker 5: the jurors couldn't figure out whether the official accidne were 391 00:24:15,800 --> 00:24:18,240 Speaker 5: because of the bribes or because of the friendship here, 392 00:24:18,520 --> 00:24:21,920 Speaker 5: there's no relationship like that. This was purely transactional. It's 393 00:24:21,920 --> 00:24:23,760 Speaker 5: all laid out there in the text, so they don't 394 00:24:23,800 --> 00:24:26,800 Speaker 5: have the same challenges. But yeah, I mean, anytime you 395 00:24:27,320 --> 00:24:29,719 Speaker 5: have a loss, hopefully you learn something from it. 396 00:24:29,960 --> 00:24:33,360 Speaker 1: Why is a Manhattan US attorney bringing this And how 397 00:24:33,400 --> 00:24:36,480 Speaker 1: much of a disadvantage is that for Menandez not having 398 00:24:36,520 --> 00:24:39,280 Speaker 1: a sort of a home court advantage. 399 00:24:39,560 --> 00:24:42,520 Speaker 5: Well, I don't exactly know. I mean, it would depend 400 00:24:42,520 --> 00:24:46,600 Speaker 5: in part on which FBI office started the investigation. You know, 401 00:24:46,680 --> 00:24:49,880 Speaker 5: what they learned first that kind of triggered the case 402 00:24:49,920 --> 00:24:53,760 Speaker 5: for them to trigger the investigation. You know, sometimes there 403 00:24:53,760 --> 00:24:56,840 Speaker 5: are multiple offices involved, and then the Department of Justice 404 00:24:56,960 --> 00:24:59,240 Speaker 5: main Justice will decide who gets it. So it's hard 405 00:24:59,280 --> 00:25:01,800 Speaker 5: to know. You know, they obviously will have to have 406 00:25:01,920 --> 00:25:05,000 Speaker 5: some ties to Manhattan or else they wouldn't have venue. 407 00:25:05,320 --> 00:25:08,280 Speaker 5: But it's not exactly clear. And I mean, I think 408 00:25:08,280 --> 00:25:11,480 Speaker 5: he probably would prefer to be in New Jersey because 409 00:25:11,760 --> 00:25:14,880 Speaker 5: you know, those are his constituents. But you know, at 410 00:25:14,880 --> 00:25:18,560 Speaker 5: the end of the day, everybody knows Bob Menendez. I 411 00:25:18,600 --> 00:25:21,320 Speaker 5: don't know that he would get a better jury in 412 00:25:21,359 --> 00:25:24,720 Speaker 5: New Jersey than he'll get in Manhattan. It's still if 413 00:25:24,760 --> 00:25:27,199 Speaker 5: you want to think about it politically, it's still a 414 00:25:27,320 --> 00:25:30,719 Speaker 5: very blue area. I guess if he's a Democratic senator, 415 00:25:30,720 --> 00:25:32,640 Speaker 5: and you may think that that helps them. Now, I'm 416 00:25:32,640 --> 00:25:35,600 Speaker 5: not exactly sure why I ended up there, but listen, 417 00:25:35,640 --> 00:25:37,679 Speaker 5: that's my old shop, and so I'm biased, but I 418 00:25:37,680 --> 00:25:40,520 Speaker 5: think they're the best prosecutors anywhere, So I think it's 419 00:25:40,760 --> 00:25:41,760 Speaker 5: a good thing that it did. 420 00:25:42,200 --> 00:25:45,960 Speaker 1: Coming up next, I'll continue this conversation with Jennifer Rogers 421 00:25:46,359 --> 00:25:49,400 Speaker 1: and we'll talk about what possible defenses Menendez may have. 422 00:25:49,960 --> 00:25:52,639 Speaker 1: I'm June Gross. When you're listening to Bloomberg, I've been 423 00:25:52,680 --> 00:25:56,520 Speaker 1: talking to former federal prosecutor Jennifer Rogers about the federal 424 00:25:56,640 --> 00:26:00,920 Speaker 1: charges against New Jersey Senator Bob Menendez. For just explain 425 00:26:01,240 --> 00:26:05,119 Speaker 1: in a little more depth what happened during that twenty 426 00:26:05,160 --> 00:26:06,199 Speaker 1: seventeen trial. 427 00:26:06,800 --> 00:26:08,680 Speaker 5: Yeah, so there were a few things that happened. 428 00:26:09,000 --> 00:26:09,239 Speaker 1: You know. 429 00:26:09,320 --> 00:26:11,640 Speaker 5: First of all, as I said, there's been this kind 430 00:26:11,680 --> 00:26:14,400 Speaker 5: of ten year period where the Supreme Court has been 431 00:26:14,880 --> 00:26:17,960 Speaker 5: changing the law effectively in these public corruption cases, and 432 00:26:18,000 --> 00:26:21,160 Speaker 5: so prosecutors really have been at a disadvantage in terms 433 00:26:21,200 --> 00:26:24,200 Speaker 5: of figuring out what to charge, how to charge how 434 00:26:24,240 --> 00:26:27,120 Speaker 5: to ask for jury instructions and then crossing their fingers 435 00:26:27,119 --> 00:26:30,000 Speaker 5: that it would get all undone by the next public 436 00:26:30,000 --> 00:26:32,000 Speaker 5: corruption case that went up to the Supreme Court. So 437 00:26:32,359 --> 00:26:34,800 Speaker 5: some of that is kind of the uncertainty. But they 438 00:26:34,920 --> 00:26:38,320 Speaker 5: charged two kinds of bribes in that case. And this 439 00:26:38,440 --> 00:26:42,199 Speaker 5: basically is the relationship between the Senator Menendez and his 440 00:26:42,280 --> 00:26:46,919 Speaker 5: close personal friend and ophthalmologists from Florida, doctor Melgan. And 441 00:26:47,359 --> 00:26:50,399 Speaker 5: you know, they charged two kinds of bribes. They charged 442 00:26:50,440 --> 00:26:54,159 Speaker 5: campaign donations. And the challenge with campaign donations, if you 443 00:26:54,280 --> 00:26:56,840 Speaker 5: charge them and they are reported properly and so on, 444 00:26:56,960 --> 00:27:00,479 Speaker 5: is you have to prove an explicit quid problem that like, 445 00:27:00,760 --> 00:27:03,639 Speaker 5: I'm giving you these campaign donations in exchange for the 446 00:27:03,680 --> 00:27:07,400 Speaker 5: following official acts, right, which is virtually impossible to actually get. 447 00:27:08,160 --> 00:27:10,080 Speaker 5: So they had trouble with that one. They didn't have 448 00:27:10,160 --> 00:27:12,920 Speaker 5: that proof of trial. And then they charged a set 449 00:27:12,960 --> 00:27:15,960 Speaker 5: of bribes that were in the form of trips, basically 450 00:27:16,119 --> 00:27:20,199 Speaker 5: trips where doctor Melgan and Senator Menendez went together on 451 00:27:20,800 --> 00:27:24,600 Speaker 5: the private jet to the fancy home sometimes overseas, etc. 452 00:27:25,040 --> 00:27:28,800 Speaker 5: And those are deemed gifts to Menendez, right, he didn't 453 00:27:28,840 --> 00:27:32,199 Speaker 5: pay his friend doctor Melgan back for the expenses associated 454 00:27:32,240 --> 00:27:35,240 Speaker 5: with those trips. But the problem with that theory is 455 00:27:35,280 --> 00:27:37,120 Speaker 5: that I think a lot of the jurors thought, well, 456 00:27:37,600 --> 00:27:40,240 Speaker 5: how do we know that that's not because of the friendship. 457 00:27:40,240 --> 00:27:42,280 Speaker 5: I mean, if you had a really wealthy friend, maybe 458 00:27:42,280 --> 00:27:44,360 Speaker 5: that friend would spring for you to go on vacation 459 00:27:44,640 --> 00:27:47,680 Speaker 5: with him or her. Right, So they had trouble saying 460 00:27:48,080 --> 00:27:51,000 Speaker 5: that the things that Senator Menendez did for doctor Melgan, 461 00:27:51,119 --> 00:27:54,440 Speaker 5: and there were things, I mean, he did definitely try 462 00:27:54,480 --> 00:27:57,880 Speaker 5: to influence certain official actions on behalf of doctor Melgan. 463 00:27:58,000 --> 00:28:00,439 Speaker 5: Like that side of the case was okay, But the 464 00:28:00,520 --> 00:28:05,040 Speaker 5: question is we're the bribes actually in exchange for those benefits, 465 00:28:05,080 --> 00:28:06,679 Speaker 5: and that's where that case had trouble. 466 00:28:07,640 --> 00:28:10,200 Speaker 1: Can you see a defense that Menandez could raise. 467 00:28:11,160 --> 00:28:13,240 Speaker 5: The case is very strong, I think on all fronts. 468 00:28:13,560 --> 00:28:16,080 Speaker 5: The most likely place where they have a little bit 469 00:28:16,119 --> 00:28:19,400 Speaker 5: of wiggle room some arguments to make is the official 470 00:28:19,480 --> 00:28:23,640 Speaker 5: act piece of it, because it's not entirely clear the 471 00:28:23,720 --> 00:28:27,239 Speaker 5: outside limits of what an official act can be. We 472 00:28:27,359 --> 00:28:30,520 Speaker 5: know from the Supreme Court case the McDonald case about 473 00:28:30,520 --> 00:28:34,440 Speaker 5: the former Virginia governor that it has to be something governmental, right, 474 00:28:34,560 --> 00:28:37,960 Speaker 5: not just that you do because you're a senator, for example. 475 00:28:38,040 --> 00:28:41,240 Speaker 5: But it really goes to kind of a typical government function, 476 00:28:41,400 --> 00:28:44,680 Speaker 5: so passing a piece of legislation, holding up a piece 477 00:28:44,680 --> 00:28:48,640 Speaker 5: of legislation, doing an investigation in Congress like those are 478 00:28:48,640 --> 00:28:51,240 Speaker 5: the sorts of things that would definitely be seemed to 479 00:28:51,280 --> 00:28:54,680 Speaker 5: be an official act, but it's not one hundred percent 480 00:28:54,800 --> 00:28:58,320 Speaker 5: clear that other things to just using your influence would 481 00:28:58,400 --> 00:29:02,760 Speaker 5: necessarily clear that bar So they've charged him with or 482 00:29:02,800 --> 00:29:06,000 Speaker 5: they've mentioned in the indictment that he tried to influence 483 00:29:06,040 --> 00:29:09,760 Speaker 5: prosecutors in New Jersey about cases that his co defendants 484 00:29:09,760 --> 00:29:12,560 Speaker 5: were interested in. They said he tried to influence an 485 00:29:12,560 --> 00:29:15,480 Speaker 5: official at the US Department of Agriculture to help these 486 00:29:15,520 --> 00:29:19,240 Speaker 5: co defendants in a business that they wanted. Those sorts 487 00:29:19,240 --> 00:29:22,040 Speaker 5: of things are a little bit on the line, so, 488 00:29:22,600 --> 00:29:24,480 Speaker 5: you know, I think they could be deemed to be 489 00:29:24,520 --> 00:29:27,479 Speaker 5: official acts, but it's not one hundred percent clear. So 490 00:29:27,520 --> 00:29:31,120 Speaker 5: if I'm menndez a lawyers, That's where I'm probably going 491 00:29:31,200 --> 00:29:34,000 Speaker 5: to be looking and seeing if there are arguments to 492 00:29:34,040 --> 00:29:37,520 Speaker 5: make there for you know, those things maybe distasteful, but 493 00:29:37,640 --> 00:29:40,760 Speaker 5: are they technically official acts as far as the statute goes. 494 00:29:40,760 --> 00:29:41,920 Speaker 5: That's what I'd be looking for. 495 00:29:42,320 --> 00:29:44,640 Speaker 1: Do you think prosecutors are going to try to flip 496 00:29:45,000 --> 00:29:48,080 Speaker 1: some of the other defendants, not his wife, but the others. 497 00:29:49,240 --> 00:29:52,080 Speaker 5: They might, I assume would at least be open to 498 00:29:52,200 --> 00:29:55,840 Speaker 5: talking to those lawyers and those defendants about that issue. 499 00:29:55,880 --> 00:30:00,200 Speaker 5: I mean, you know, they have so many communications, they 500 00:30:00,240 --> 00:30:02,760 Speaker 5: have all these text messages, and so I don't know 501 00:30:02,800 --> 00:30:05,480 Speaker 5: that they need a cooperator in the way that you 502 00:30:05,640 --> 00:30:08,680 Speaker 5: often really want one in a case like this. That said, 503 00:30:08,720 --> 00:30:11,680 Speaker 5: prosecutors in my experience are always willing to listen to 504 00:30:11,760 --> 00:30:14,920 Speaker 5: a defendant who wants to come forward and say, here's 505 00:30:14,960 --> 00:30:18,120 Speaker 5: why I deserve a cooperation agreement. So I think they'll 506 00:30:18,120 --> 00:30:21,240 Speaker 5: probably listen to them and listen. If they can provide 507 00:30:21,600 --> 00:30:24,600 Speaker 5: evidence that they don't already have that will help them 508 00:30:24,640 --> 00:30:27,640 Speaker 5: with their case, they probably would sign one of them 509 00:30:27,680 --> 00:30:29,760 Speaker 5: up or two of them up, depending on you know 510 00:30:29,800 --> 00:30:30,640 Speaker 5: what the facts are. 511 00:30:31,120 --> 00:30:33,880 Speaker 1: Would all the defendants be tried together or do you 512 00:30:33,920 --> 00:30:37,720 Speaker 1: think Menandez might be able to get his trial severed. 513 00:30:38,160 --> 00:30:41,920 Speaker 5: I think they'll all be tried together. I mean, usually 514 00:30:42,080 --> 00:30:46,520 Speaker 5: to conserve resources, they try to keep cases like this together. 515 00:30:46,600 --> 00:30:49,200 Speaker 5: The only real reason he would have to try to 516 00:30:49,240 --> 00:30:52,760 Speaker 5: sever it is if there are defenses that conflict with 517 00:30:52,880 --> 00:30:55,600 Speaker 5: each other. You know, if there's no fair way to 518 00:30:55,640 --> 00:30:58,360 Speaker 5: try them together because they're pointing the finger at each 519 00:30:58,360 --> 00:31:01,920 Speaker 5: other in an antagonistic way, you know, that's where you 520 00:31:01,960 --> 00:31:05,520 Speaker 5: would see a problem with something like that. But you know, 521 00:31:05,720 --> 00:31:07,800 Speaker 5: I we'll have to see how it developed. I think 522 00:31:07,880 --> 00:31:11,040 Speaker 5: there's a you know, there's a presumption for keeping cases 523 00:31:11,080 --> 00:31:14,640 Speaker 5: like this together because obviously to try it twice, you know, 524 00:31:15,200 --> 00:31:17,840 Speaker 5: not to mention five times with five defendants, would be 525 00:31:18,000 --> 00:31:19,720 Speaker 5: just too much of a burden on the system. 526 00:31:20,360 --> 00:31:22,600 Speaker 1: So this is a bit of an opinion question. But 527 00:31:23,040 --> 00:31:27,240 Speaker 1: it seems like Senate Democrats have already tried and convicted 528 00:31:27,360 --> 00:31:30,560 Speaker 1: him just based on the allegations and the complaint. I'm 529 00:31:30,600 --> 00:31:33,560 Speaker 1: wondering if you think that's because the allegations are so 530 00:31:33,880 --> 00:31:37,600 Speaker 1: striking or just because it's politics. 531 00:31:38,280 --> 00:31:40,800 Speaker 5: You know, it's hard to know what they're all thinking. 532 00:31:40,840 --> 00:31:43,680 Speaker 5: As far as the political side. I will say there 533 00:31:43,760 --> 00:31:46,480 Speaker 5: might be a bit of fatigue with Senator Menendez because 534 00:31:46,480 --> 00:31:49,960 Speaker 5: we have been through this before, and even though he 535 00:31:50,160 --> 00:31:52,760 Speaker 5: ended up with a hung jury and not being convicted, 536 00:31:53,120 --> 00:31:57,240 Speaker 5: you know, there were clear ethical violations there the Senate 537 00:31:57,320 --> 00:32:00,480 Speaker 5: down So you know, here we go again, right on 538 00:32:00,520 --> 00:32:04,280 Speaker 5: the heels of the determination that he wouldn't be retried 539 00:32:04,440 --> 00:32:07,000 Speaker 5: on that case. He's you know, meeting up with these 540 00:32:07,000 --> 00:32:10,080 Speaker 5: people and starting a similar scheme all over again. I 541 00:32:10,120 --> 00:32:12,920 Speaker 5: also think that the nature of the evidence has explained 542 00:32:12,960 --> 00:32:15,760 Speaker 5: in the indictment is pretty black and white. It's not 543 00:32:15,840 --> 00:32:18,120 Speaker 5: as if they say, you know, in the indictment, we 544 00:32:18,200 --> 00:32:21,280 Speaker 5: have a cooperating witness c W one and the witness 545 00:32:21,280 --> 00:32:23,200 Speaker 5: says X, Y and Z, and you can think, well, 546 00:32:23,240 --> 00:32:26,720 Speaker 5: maybe the witness is lying, maybe his credibility problems. You know, 547 00:32:26,800 --> 00:32:30,640 Speaker 5: they have these communications, they are what they are, black 548 00:32:30,680 --> 00:32:33,440 Speaker 5: and white. There will be transcripts, so you know, I 549 00:32:33,440 --> 00:32:38,160 Speaker 5: think those things together probably suggest to these politicians that 550 00:32:38,400 --> 00:32:41,880 Speaker 5: there's not a lot of opportunity to wiggle out of this. 551 00:32:42,360 --> 00:32:46,000 Speaker 5: And you know, we'll see when the discovery gets turned over, 552 00:32:46,240 --> 00:32:49,880 Speaker 5: which should be pretty soon, whether Menendez comes off of 553 00:32:49,920 --> 00:32:52,680 Speaker 5: his claim that he won't resign and you know, is 554 00:32:52,720 --> 00:32:56,560 Speaker 5: going to surge forward. I think once he actually confirms 555 00:32:56,640 --> 00:32:59,360 Speaker 5: that what is in the indictment is accurate, he's probably 556 00:32:59,400 --> 00:33:01,680 Speaker 5: going to be talking to his lawyers about how to 557 00:33:01,720 --> 00:33:04,160 Speaker 5: try to mitigate this and look for some sort of 558 00:33:04,520 --> 00:33:06,880 Speaker 5: plea deal to a lesser offense or something like that. 559 00:33:07,560 --> 00:33:11,479 Speaker 1: You think that's possible that the prosecutors would agree to 560 00:33:11,520 --> 00:33:12,480 Speaker 1: a lesser offense. 561 00:33:13,480 --> 00:33:15,680 Speaker 5: Sure, sure, I mean the trick in a case like 562 00:33:15,720 --> 00:33:20,000 Speaker 5: this is finding one, honestly, because all three of these 563 00:33:20,160 --> 00:33:22,880 Speaker 5: offenses that they've charged are really just different ways to 564 00:33:22,960 --> 00:33:25,840 Speaker 5: charge bribery, and the sentencing guidelines are going to be 565 00:33:25,840 --> 00:33:27,960 Speaker 5: the same for all of them. So the trick would 566 00:33:28,000 --> 00:33:32,760 Speaker 5: be trying to find something with a lesser guidelines range. 567 00:33:32,840 --> 00:33:35,800 Speaker 5: But yeah, prosecutors are always looking to save resources by 568 00:33:35,840 --> 00:33:38,400 Speaker 5: pleading things out. And you know, when you have a case, 569 00:33:38,400 --> 00:33:41,640 Speaker 5: a public corruption case with a corrupt politician who is 570 00:33:41,720 --> 00:33:45,200 Speaker 5: still in office, prosecutors have an interest in getting that 571 00:33:45,240 --> 00:33:48,280 Speaker 5: person out of office. So if he comes in and says, 572 00:33:48,320 --> 00:33:51,320 Speaker 5: you know, listen, I'd like to take a plea, they're like, great, that, 573 00:33:51,520 --> 00:33:53,320 Speaker 5: you know, wraps up our case. We don't have to 574 00:33:53,680 --> 00:33:56,160 Speaker 5: do a long period of pre trial and then go 575 00:33:56,240 --> 00:33:58,880 Speaker 5: to trial. And if it includes a deal that he'll 576 00:33:58,920 --> 00:34:01,720 Speaker 5: resign all about, you know, he's he's out sooner than 577 00:34:01,760 --> 00:34:04,400 Speaker 5: he would otherwise be. So I'm sure prosecutors would be 578 00:34:04,440 --> 00:34:06,800 Speaker 5: willing to think about that. The question is, you know, 579 00:34:06,840 --> 00:34:09,319 Speaker 5: what can they find it would be agreeable to both 580 00:34:09,360 --> 00:34:10,600 Speaker 5: sides For him to plead. 581 00:34:10,400 --> 00:34:13,160 Speaker 1: To Do you think that any deal would have to 582 00:34:13,160 --> 00:34:14,120 Speaker 1: include jail time. 583 00:34:14,760 --> 00:34:17,319 Speaker 5: I don't know. Yeah, I don't know where prosecutors would 584 00:34:17,360 --> 00:34:19,480 Speaker 5: come out on that. You know, on the one hand, 585 00:34:20,000 --> 00:34:22,600 Speaker 5: he's on the older side, you know, is he I 586 00:34:22,640 --> 00:34:24,800 Speaker 5: was going to say, is a recidivus? I guess actually 587 00:34:24,840 --> 00:34:27,200 Speaker 5: if he is a recidivist, because we had the other 588 00:34:27,239 --> 00:34:28,640 Speaker 5: case and then this one on the heels of it. 589 00:34:28,680 --> 00:34:31,080 Speaker 5: But if he's removed from office, you know, the opportunity 590 00:34:31,120 --> 00:34:34,400 Speaker 5: for this sort of thing will be obviously significantly lessened. 591 00:34:35,120 --> 00:34:37,320 Speaker 5: So I'm not sure whether they would insist on something 592 00:34:37,800 --> 00:34:40,640 Speaker 5: with jail time. I mean, prosecutors never get to decide 593 00:34:40,640 --> 00:34:42,840 Speaker 5: the sentence anyway. Even if you agree on a range, 594 00:34:42,880 --> 00:34:45,239 Speaker 5: is ultimately up to the judge. So you know, I 595 00:34:45,280 --> 00:34:48,319 Speaker 5: certainly could see them picking a range that is low 596 00:34:48,400 --> 00:34:51,400 Speaker 5: enough that a judge might decide, you know, ultimately to 597 00:34:51,520 --> 00:34:54,000 Speaker 5: just give probation. But you know, they know the case 598 00:34:54,080 --> 00:34:57,680 Speaker 5: much better obviously than we all do from the outside, 599 00:34:57,760 --> 00:34:59,840 Speaker 5: So yeah, I'm not sure how they would view the 600 00:35:00,480 --> 00:35:03,600 Speaker 5: and decide, you know, what they think is the appropriate Then. 601 00:35:03,920 --> 00:35:08,000 Speaker 1: What's interesting is several people told Politico that after Friday's 602 00:35:08,040 --> 00:35:13,120 Speaker 1: indictment Menandez seemed emboldened almost. And I saw he was 603 00:35:13,200 --> 00:35:16,160 Speaker 1: being questioned by reporters yesterday as he was running through 604 00:35:16,200 --> 00:35:19,360 Speaker 1: the Senate halls, and he said, because I'm innocent, what's 605 00:35:19,400 --> 00:35:22,800 Speaker 1: wrong with you guys? But maybe when he sees the evidence. 606 00:35:23,840 --> 00:35:27,080 Speaker 5: Yeah, I mean he may just his knee jerk reaction 607 00:35:27,239 --> 00:35:29,680 Speaker 5: may have been, you know, I beat you before I 608 00:35:29,680 --> 00:35:33,080 Speaker 5: can beat you again, forget about it. But you know, 609 00:35:33,200 --> 00:35:35,840 Speaker 5: in the cold, sober light of day, when they have 610 00:35:36,000 --> 00:35:38,920 Speaker 5: the evidence, when he's sitting down with his lawyers, and 611 00:35:38,960 --> 00:35:41,839 Speaker 5: when they explain to him the differences between this case 612 00:35:41,880 --> 00:35:45,000 Speaker 5: and the prior case, you know, I suspect he won't 613 00:35:45,040 --> 00:35:47,960 Speaker 5: have so much bravado, at least in private. You know, 614 00:35:48,000 --> 00:35:51,600 Speaker 5: who knows what he'll continue to maintain in public. He's 615 00:35:51,680 --> 00:35:53,719 Speaker 5: kind of on the ropes politically, right with all of 616 00:35:53,719 --> 00:35:56,640 Speaker 5: these colleagues of him, of his calling for his resignation. 617 00:35:56,920 --> 00:35:59,560 Speaker 5: So maybe he feels like that's the face he has 618 00:35:59,640 --> 00:36:02,520 Speaker 5: to put on to fight that battle in this moment. 619 00:36:02,600 --> 00:36:05,719 Speaker 5: But you know, behind the scenes, I'm sure he'll be 620 00:36:05,840 --> 00:36:07,320 Speaker 5: more thoughtful about this case. 621 00:36:07,760 --> 00:36:09,440 Speaker 1: So always great to have you on, Jennifer and to 622 00:36:09,480 --> 00:36:13,799 Speaker 1: get your insights that's former federal prosecutor Jennifer Rogers a 623 00:36:13,880 --> 00:36:17,160 Speaker 1: lecture in law at Columbia Law School. And that's it 624 00:36:17,200 --> 00:36:19,759 Speaker 1: for this edition of The Bloomberg Law Show. Remember you 625 00:36:19,800 --> 00:36:22,280 Speaker 1: can always get the latest legal news on our Bloomberg 626 00:36:22,360 --> 00:36:25,960 Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify, 627 00:36:26,160 --> 00:36:31,200 Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law, 628 00:36:31,600 --> 00:36:34,200 Speaker 1: And remember to tune into The Bloomberg Law Show every 629 00:36:34,239 --> 00:36:38,160 Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso 630 00:36:38,280 --> 00:36:39,880 Speaker 1: and you're listening to Bloomberg