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Speaker 1: Will Democrat Robert Menendez of New Jersey become the first

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Speaker 1: sitting senator in nine years to become a felon. It

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Speaker 1: will be up to a jury of six women and

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Speaker 1: six men in Newark, New Jersey. Menendez is charged with

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Speaker 1: corruption and bribery for doing political favors for a doctor

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Speaker 1: in exchange for hundreds of thousands of dollars in campaign contributions,

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Speaker 1: lavish vacations, and other gifts. The doctor is being tried

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Speaker 1: with Menendez, his longtime friend. Following his indictment in April

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Speaker 1: of the senator has repeatedly maintained that he will be exonerated.

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Speaker 1: I'm angry because prosecutors at the Justice Department don't know

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Speaker 1: the difference between friendship and corruption and have chosen to

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Speaker 1: twist my duties as a senator and my friendship into

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Speaker 1: something that is improper. They are dead wrong, and I

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Speaker 1: am confident that they will be proven. So the political

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Speaker 1: stakes of the trial are high, with the potential loss

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Speaker 1: of a Senate seat for the Democrats. Our guests are

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Speaker 1: Robert Mints, the head of the White Collar and Political

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Speaker 1: Corruptions Unit, McCarter and English and a former federal prosecutor

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Speaker 1: and Robert him of Meersenheim, a former assistant regional director

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Speaker 1: of the SEC. Bob Mint. Since I see we have

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Speaker 1: two Bobs today, we'll have to go by both names.

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Speaker 1: Bob Mints tell us about the prosecution's case against Hernandez Shorten.

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Speaker 1: The prosecutions case UH includes a ten counts which are

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Speaker 1: charges of conspiracy, bribery, thefted on his services which is

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Speaker 1: essentially to pride and constituents of your honest services as

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Speaker 1: a elected public official, violating the Travel Act, which is

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Speaker 1: prohibiting traveling interstate or foreign travel in connection with committing

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Speaker 1: certain criminal acts, which in this case is bribery. What

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Speaker 1: the heart of the case really is about this long

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Speaker 1: running friendship between Center Mernandez and Dr Salomon Meligan, who

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Speaker 1: was an ophthalmologist in Florida and who contributed considerably to

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Speaker 1: Center Menendez's campaign, lavish gifts upon him, including expensive hotels,

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Speaker 1: trips to the Dominican republic um and then linked to that,

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Speaker 1: according to prosecutors, were various official acts which Centator Menendez

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Speaker 1: bestowed upon Dr Meligan in exchange for those gifts, and

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Speaker 1: those had to do with a number of disputes that

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Speaker 1: Dr Belgan was involved with one involving millions of dollars

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Speaker 1: for Medicare claims. He was an optimologist and had a

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Speaker 1: multimillion dollar Medicare claim with the federal government. He also

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Speaker 1: had a five hundred million dollar contract to spee with

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Speaker 1: the Dominican Republic. And the smaller issue, but one that

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Speaker 1: no doubt will be brought up at the trial because

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Speaker 1: there's a salacious element to it, was the allegation that

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Speaker 1: Center Menendez assisted with be the applications for Dr Meligan's girlfriends.

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Speaker 1: Bob Jeim, there's really not a lot of dispute. It

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Speaker 1: doesn't appear about the facts of the case in terms

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Speaker 1: of whether Senator Menendez did a lot of these things

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Speaker 1: for the doctor. What's his defense, Yes, that's a very

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Speaker 1: good point. There really is not a lot of factual

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Speaker 1: disputes between the parties, and the senator's defense is essentially

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Speaker 1: that he was acting as as a friend towards the

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Speaker 1: doctor and that what he was doing in terms of

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Speaker 1: the favors and other types of things did not rise

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Speaker 1: to the level of what is called an official act.

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Speaker 1: We have a well known Supreme Court case that came

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Speaker 1: out last year that involved the governor of Virginia Robert McDonald,

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Speaker 1: and what he what that case had held was that

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Speaker 1: it's really not enough to sustain a bribery conviction against

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Speaker 1: the public official if they're merely offering courtesies or doing

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Speaker 1: things such is setting up meetings or hosting events, that

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Speaker 1: more is required. And Senator um de Menendez's arguments has

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Speaker 1: always been that essentially the actions that he performed were

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Speaker 1: not official acts. They were just essentially courtesies and other

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Speaker 1: things that don't rise to the level of an official

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Speaker 1: act for purposes of the bribery statute. Bob Mints, is

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Speaker 1: it even clear at this point what an official act

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Speaker 1: is and what prosecutors have to prove now that has

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Speaker 1: been moneyed up quite a bit by the decision that

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Speaker 1: Bob just mentioned the McDonald's case. Uh. In that case,

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Speaker 1: the governor had set up meetings for a constituent as

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Speaker 1: an example, and that was held by the Supreme Court

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Speaker 1: to not be an official act for purposes of federal

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Speaker 1: bribery charges. I think what happened there was the Supreme

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Speaker 1: Court was worried that federal prosecutors were criminalizing routine political

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Speaker 1: conduct where politicians are are in fact supposed to assist

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Speaker 1: their constituents and set up meetings and help resolve issues.

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Speaker 1: And I think we're going to see the Menendez defense

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Speaker 1: feed right into that narrative where they're going to say

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Speaker 1: that the benefits that he provided to Dr Meligan were

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Speaker 1: simply assisting him in dealing with federal agencies and that

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Speaker 1: they were routine constituent services that were not tied to

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Speaker 1: any of the payments he received. They're also going to

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Speaker 1: point out to the fact that the decisions ultimately on

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Speaker 1: what to do for all of these issues, whether it

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Speaker 1: was the large Medicare claim or the dispute with the

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Speaker 1: Dominican Republic, were not decisions were ultimately made by Senator

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Speaker 1: Menendez himself. We're talking about the upcoming trial of Democratic

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Speaker 1: Senator Robert Menendez of New Jersey on charges of corruption

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Speaker 1: and bribery with Robert Mint's a partner McCarter and English,

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Speaker 1: and Robert him a partner at Myers and Heim Bob Mints.

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Speaker 1: A lot of it's been alleged, as we mentioned, is

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Speaker 1: factual and won't be disputed by the defense attorneys. But

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Speaker 1: how does the government go about proving that there was

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Speaker 1: a bribe that took place and that both men had

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Speaker 1: an agreement as to what that would mean without having

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Speaker 1: a cooperator or emails or something other than circumstantial evidence.

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Speaker 1: That's a great question, because I think prosecutors were hoping

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Speaker 1: to have that insider in the form of Dr Melligan.

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Speaker 1: Dr Melegan was recently prosecuted and convicted in the Southern

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Speaker 1: District of Florida last April two charges unrelated to this,

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Speaker 1: and is now facing a lengthy time in prison. You've

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Speaker 1: yet to be sentenced on that. Prosecutors were no doubt

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Speaker 1: hoping that that would convince him to cooperate in this

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Speaker 1: investigation and testify against Center Menendez. That that has not happened.

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Speaker 1: So they're left with a circumstantial case, as you say,

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Speaker 1: where they have to show that the gifts that were

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Speaker 1: given were given with the intent to affect these official acts.

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Speaker 1: And it's really a case of asking the jury to

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Speaker 1: get inside the head of Senor Menendez and determine exactly

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Speaker 1: what his intent was. And it really boils down to

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Speaker 1: the question of where does friendship end and corruption begin.

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Speaker 1: Was this done out of friendship or was this really

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Speaker 1: a relationship that was driven by campaign contributions and laps

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Speaker 1: shifts in exchange for the official acts that Senator Menendez

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Speaker 1: is charged with having done. On Dr Meligan's behalf well,

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Speaker 1: bob him. Given the the issues we're talking about here

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Speaker 1: on on proving what an official act is and the

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Speaker 1: difference between your official course of action your unofficial course

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Speaker 1: of action, how how good a chance does the government

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Speaker 1: have of actually convicting Senator Menendez here? Well, it's an

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Speaker 1: interesting question because Judge William Wallas, who is overseeing the trial,

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Speaker 1: has actually served his decision. Uh. Senator Menendez his attorneys

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Speaker 1: filed a motion to dismiss the superseding indictment as a

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Speaker 1: result of that Supreme Court decision, and the judge in

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Speaker 1: Senor Menendez case has um has not ruled on that,

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Speaker 1: and he said that he will rule on it after

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Speaker 1: the government has a chance to present all its evidence

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Speaker 1: and when it comes time for the decision. There's certain

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Speaker 1: acts that are very clearly counts to official acts, and

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Speaker 1: these would be things like selling your vote, um, something

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Speaker 1: of that nature, threatening to hold a committee hearing, um.

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Speaker 1: But beyond that it becomes quite murky in terms of

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Speaker 1: what will satisfy the standard. One of the items the

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Speaker 1: government has in its superseding indictment is a charge that

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Speaker 1: Senator Menendez threatened to hold hearings um if he didn't

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Speaker 1: get his way with respect to the pressure he was

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Speaker 1: placing on various agencies with regards to doctor um Melgin.

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Speaker 1: And we'll have to see if the government's evidence bears

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Speaker 1: out the charges that are laid out in the In

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Speaker 1: the indictment, Bodman's a jury of six women and six

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Speaker 1: men was chosen from a wide range of professions, from

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Speaker 1: a Moody's employee who helps rate debt on foreign countries

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Speaker 1: to a mail carrier. What would you be looking for

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Speaker 1: as a prosecutor in this case and what would you

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Speaker 1: be looking for as a defense attorney in a juror? Well,

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Speaker 1: I think the prosecutors are going to be looking for

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Speaker 1: a law and order type juror, somebody who tends to

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Speaker 1: see things as right or wrong, black and white. Um.

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Speaker 1: You know, perhaps someone with a military background, uh, certainly

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Speaker 1: people in law enforcement, but that general type of background.

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Speaker 1: The defense is going to be looking for people who

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Speaker 1: they hope will look past some of these allegations, which

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Speaker 1: will undoubtedly paint um Center Menendez in in somewhat of

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Speaker 1: an unflattering light. The lavish gifts and hotel stays and

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Speaker 1: that sort of thing. Could look beyond that and look

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Speaker 1: at him at his friendship with Dr Meligan, which undoubtedly

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Speaker 1: was a friendship the last to twenty years, and and

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Speaker 1: be receptive to the argument that this was simply a

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Speaker 1: friendship that was unrelated to the official acts that Senor

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Speaker 1: Menendez took on his behalf bob him. Are we dealing

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Speaker 1: here with another situation where we might have a jury

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Speaker 1: that thinks, you know, yeah, official acts whatever, this is

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Speaker 1: a he shouldn't have done this kind of stuff. He

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Speaker 1: was really doing favors he's a senator, this is bribery,

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Speaker 1: and Menendez actually has a better chance on appeal than

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Speaker 1: a than a trial. I think that's a very fair statement.

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Speaker 1: I think with your average juror when they hear about

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Speaker 1: these kind of CD allegations, and there's a tendency to

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Speaker 1: just say that the whole thing looks wrong, looks corrupt,

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Speaker 1: and vote to convict. What we're talking about here, um

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Speaker 1: on this panel or some very nuanced legal issues in

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Speaker 1: terms of what constitutes an official act and Supreme Court precedent,

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Speaker 1: And very often those types of detailed legal issues are

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Speaker 1: better addressed at the Court of Appeals or perhaps even

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Speaker 1: with the district court judge once he considers the defendant's

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Speaker 1: Robert menendez Is motion to dismiss the indictment. Well, Bob,

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Speaker 1: I'll ask that question in a different way. Would you

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Speaker 1: rather be on as far as winning, would you rather

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Speaker 1: be the prosecutor of the defense attorney in this case?

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Speaker 1: It's very hard to say at this point because the

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Speaker 1: government has not put in all of its evidence. I'd

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Speaker 1: say that the indictment lays out a fairly strong case,

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Speaker 1: especially on the one point where they allege that Senator

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Speaker 1: Menendez threatened to hold committee hearings if he didn't get

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Speaker 1: his way. I think if the prosecutors can prove that point,

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Speaker 1: that's going to be a very good one and a

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Speaker 1: hard one to assert by the defense that that does

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Speaker 1: not constitute an official action. Thank you both for being

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Speaker 1: on bloom Burg Law. That's Robert Heim, a partner at

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Speaker 1: Myers and Heim, and Robert Mints, a partner at McCarter

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Speaker 1: and English. Just also want to mention in this case

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Speaker 1: that Menendez is very high profile. Defense attorney Abby Lowell

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Speaker 1: successfully defended U S Senator John Edwards, who was accused

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Speaker 1: of violating campaign finance laws, convincing jurors that donors put

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Speaker 1: up money out of personal friendship, and there's a possibility

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Speaker 1: that Lowell may be using that in this case as well.

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Speaker 1: Coming up on Bloomberg Law, Europe's method rules haven't even

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Speaker 1: kicked in yet, but the problems are apparent from every direction.

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Speaker 1: What the SEC is doing to prepare you're listening to

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Speaker 1: Bloomberg Law, I'm June Grosso with Michael beston Greg Store.

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Speaker 1: This is Bloomberg