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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It's been two

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Speaker 1: months since a jury deadlocked on bribery charges against Senator

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Speaker 1: Robert Menendez. The New Jersey Democrat, was emotional as he

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Speaker 1: exited the courthouse last November. To those who left me,

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Speaker 1: who abandoned me in my darkest moment, I forgive you.

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Speaker 1: To those who embraced me in my darkest moment, I

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Speaker 1: love you. To those New Jerseys who gave me the

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Speaker 1: benefit of the doubt, I thank you. After nearly three

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Speaker 1: months of trial, jurors said they were deadlocked tend to

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Speaker 1: in favor of acquitting Menendez and the doctor accused of

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Speaker 1: bribing him, but the Justice Department announced it intends to

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Speaker 1: retry him at the earliest possible date. My guest is

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Speaker 1: Robert Mintz, head of the White Color and Criminal Investigations

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Speaker 1: practice at McCarter in English, and a former federal prosecutor.

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Speaker 1: Bob juror Edward Norris said there was no smoking gun

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Speaker 1: in the case, and despite thousands of documents and almost

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Speaker 1: a hundred witnesses, he said, in my gut, I was like,

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Speaker 1: that was it. That's all they had, So ten jurors

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Speaker 1: bought the defense case. Are you surprised the prosecution is

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Speaker 1: deciding to retry. No, I'm not really surprised that the

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Speaker 1: prosecution is taking another run at this because typically the

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Speaker 1: Department of Justice will retry cases that end in a

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Speaker 1: hung jury absent some major collapse of a key witness

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Speaker 1: or some evidence that is not available in the second trial,

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Speaker 1: they will usually try the case at least one more

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Speaker 1: time to see if they can convince a different cury

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Speaker 1: to get a conviction. Do retrial's favor the prosecution, Well,

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Speaker 1: they really advantage both sides to some extent. Both sides

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Speaker 1: at this point have shown their hands. The government knows

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Speaker 1: what the defense is going to present on, the defense

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Speaker 1: knows how the government's going to present its case. On

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Speaker 1: both sides really have an opportunity to change their tactics slightly.

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Speaker 1: So I think we can see from the government an

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Speaker 1: opportunity to streamline their presentation and keep it more focused.

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Speaker 1: But ultimately prosecutors have the higher mountain decline here because

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Speaker 1: they've got to convince all twelve jurors that the relationship

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Speaker 1: between Senator Menendez and Dr Meligan was more of a

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Speaker 1: corrupt bargain than a true friendship. Tell me about the

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Speaker 1: McDonald case and which is a Supreme Court case, and

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Speaker 1: how it affects this bribery conviction, this bribery prosecution. Sure,

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Speaker 1: this is the Preme Court case of McDonald refers to

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Speaker 1: a case involving former Virginia Governor Bob McDonald, and in

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Speaker 1: that case, the Supreme Courts it reigned in prosecutors by

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Speaker 1: ruling that the government had to show a direct line

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Speaker 1: between gifts and official acts, and the official acts had

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Speaker 1: to be something more than merely arranging a meeting. In

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Speaker 1: other words, some official action had to be taken or influenced.

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Speaker 1: So in this case, there were actions that were taken

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Speaker 1: by Senator Menendez, and there were gifts or things of

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Speaker 1: value that were given by Dr Meligan to Senator Menendez.

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Speaker 1: And what prosecutors have to do is to draw that

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Speaker 1: direct line between the gifts and the official actions and

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Speaker 1: try to convince durers that the official actions were only

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Speaker 1: taken in exchange for the gifts. Now, that particular Supreme

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Speaker 1: Court ruling has really tripped up a lot of prosecutions,

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Speaker 1: hasn't it. It has certainly made it more difficult for

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Speaker 1: the government to prove these political corruption cases because they

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Speaker 1: have to show that direct pie. And in this case,

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Speaker 1: it's going to be particularly challenging because prosecutors aren't even

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Speaker 1: alleging of the classic quid pro quo arrangement. In other words,

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Speaker 1: prosecutors are not even arguing to the jury that there

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Speaker 1: was money that was given in exchange in exchange for

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Speaker 1: a particular action. Instead, they've adopted a more controversial and

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Speaker 1: less tested legal theory that's described as the stream of

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Speaker 1: benefits theory of prosecution. And essentially, what prosecutors are saying

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Speaker 1: is that Minette is that Menendez received a stream of

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Speaker 1: gifts from Dr Melgan with the unspoken understanding that Senator

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Speaker 1: Menendez would be available to take action for Dr Meligan's benefit.

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Speaker 1: At some point in the future, Bob Menendez will have

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Speaker 1: to defend himself, most likely in a year when he's

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Speaker 1: up for reelection. How will that play into what happens

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Speaker 1: in the in the courtroom? Well, the case was a

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Speaker 1: high profile case the first time a around, and it's

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Speaker 1: going to be even more high profile the second time around,

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Speaker 1: given the reelection, which will be now much more close

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Speaker 1: in time to the trial. So I think we're going

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Speaker 1: to see both sides going all out. Retrials were action

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Speaker 1: up the pressure on both sides, and both sides are

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Speaker 1: going to have to try to figure out a strategy

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Speaker 1: to ensure that they win. The prosecutors made a motion

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Speaker 1: to preclude improper arguments that was very interesting. Tell us

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Speaker 1: about it. Yeah, the government filed a preemptive motion last

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Speaker 1: week to prevent the defense from what they claim were

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Speaker 1: improper attempts to influence se jury using racial and ethnic references.

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Speaker 1: So they claim in their motion, for example, that the

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Speaker 1: defense had lined the hallway every morning where jurors walked

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Speaker 1: in and out with supporters of Senator Menendez, and that

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Speaker 1: there were clergy there who were leading prayers, and that

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Speaker 1: there were references throughout the trial to center Menendez's ethnic

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Speaker 1: background as a Spatic senator um and the government believes

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Speaker 1: that that was improper. And what they're trying to do

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Speaker 1: is condition the judge the second time around to try

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Speaker 1: to make sure that some of what they perceived to

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Speaker 1: be improper influences excluded from the second trial. So now

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Speaker 1: suppose that you're the prosecutor trying this again, and you

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Speaker 1: know that you came up with a ten ten jurors,

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Speaker 1: only two jurors who were on your side in the

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Speaker 1: first trial. You only have the facts that you have.

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Speaker 1: What do what can you do to really reshape your case? Well,

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Speaker 1: it's difficult, to be honest. They don't have an insider

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Speaker 1: the way these cases often do, where you've got a

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Speaker 1: member of the conspiracy who can explain what went on,

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Speaker 1: so that so that they don't have what is basically

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Speaker 1: just a circumstantial case. They don't have that here, So

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Speaker 1: they have to go with the evidence they have. And

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Speaker 1: I think they have to try to deal with this

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Speaker 1: friendship defense more directly because that is something that I

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Speaker 1: think ultimately tripped them up during the first trial. They

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Speaker 1: also have to try to shorten their case because it

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Speaker 1: went on too long, I think most observers believe, and

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Speaker 1: when the case goes on for too long, generally that

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Speaker 1: tends to help the defense and hurt the prosecution. So

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Speaker 1: how do the prosecution the first time around showed all

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Speaker 1: kinds of pictures of of them and what what happened,

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Speaker 1: and the luxurious suites and all that. Do you think

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Speaker 1: you'd eliminate those Well, I don't think you can eliminate

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Speaker 1: them altogether, because it's a bit of a two edged sword.

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Speaker 1: And I think what the prosecution was trying to argue

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Speaker 1: was that the very lavish nature of these gifts suggested

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Speaker 1: it was more than friendship. Um that you don't typically

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Speaker 1: have friends, even even good friends, who pay for hotel

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Speaker 1: stays in a Paris hotel of more than five thousand dollars,

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Speaker 1: who provide all these uh flights on private jets and

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Speaker 1: commercial jets, um, that sort of thing. Um. But at

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Speaker 1: the same time, if you go too far, I think

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Speaker 1: it can backfire. And at least some of the juror's

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Speaker 1: comments after the first trial suggested that they felt like

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Speaker 1: the government was asking for a conviction merely because of

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Speaker 1: the lavish nature of the gifts without thank you. If

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Speaker 1: there was this connection, time goes quickly. Thanks Bob. That's

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Speaker 1: Bob NaN's a partner in with Parter in English. Attorney

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Speaker 1: General Jeff Sessions has been a hard core opponent of

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Speaker 1: states legalization of marijuana, which is illegal under federal law.

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Speaker 1: I've never felt that we should legalize marijuana. I think

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Speaker 1: it's doesn't strike me that the country would be better

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Speaker 1: if it's being sold at every street corner. But this month,

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Speaker 1: Sessions doubled down, rescinding the Obama era policy that kept

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Speaker 1: federal authorities from cracking down on the marijuana trade in

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Speaker 1: states where the drug is legal, and leaving it up

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Speaker 1: to us a turn needs to decide whether to enforce

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Speaker 1: the federal law in their states. I spoke to former

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Speaker 1: Massachusetts Attorney General Martha Coakley, who is now a partner

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Speaker 1: at Foley Hoagg Attorney General. The U S Attorney from

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Speaker 1: Massachusetts has refused to rule out prosecutions against state licensed

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Speaker 1: marijuana growers and manufacturers. Yet the Massachusetts Cannabis Control Commission

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Speaker 1: announced that it will move ahead with recreational licensing, with

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Speaker 1: the goal of issuing licenses in July. Is full speed

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Speaker 1: ahead wise, with the uncertainty now surrounding the conflict between

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Speaker 1: state and federal law, I think to take a little

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Speaker 1: step back and look at how long Massachusetts has been

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Speaker 1: in this process. Remember that there's been a movement for

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Speaker 1: a long time to legalize medical marijuana, which happened in Massachusetts,

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Speaker 1: which was overseen and implemented not as smoothly as it

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Speaker 1: might have been, but I think lesson learned from that.

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Speaker 1: When there was a popular vote to go for with

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Speaker 1: recreational marijuana, I think many people in the state, even

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Speaker 1: those who opposed it, recognized that this was where the

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Speaker 1: future was, this is what Massachusetts had decided, and so

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Speaker 1: setting up what appears to be a very thoughtful, hardworking commission,

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Speaker 1: making sure that they're getting input as to how they

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Speaker 1: regulate this so that it will be fair but it

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Speaker 1: also will be safe, I think says that Massachusetts is

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Speaker 1: really committed to moving forward on this. Keep in mind,

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Speaker 1: there's always been this uncertainty about what a federal government

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Speaker 1: would or wouldn't do under the Obama administration. Those memos

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Speaker 1: gave some comfort to folks, but they really shouldn't have

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Speaker 1: forgotten that the federal statutes actually will have to be changed.

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Speaker 1: This is a reminder that unlessen until Congress makes some changes,

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Speaker 1: there's always the issue of federal jurisdiction over this. I

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Speaker 1: think that there have been some concerns, of course, with

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Speaker 1: what General Sessions has done. As far as Massachusetts goes.

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Speaker 1: I think the current U. S. Attorney is he's new

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Speaker 1: in the job. I think he has said, look, I

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Speaker 1: am going to look at things case by case. I'm

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Speaker 1: going to use my resources. And since that time, I

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Speaker 1: think there's been some sense among commentators that this is

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Speaker 1: um someone who's a professional, that it's not going to

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Speaker 1: be a political issue for him, that he's going to

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Speaker 1: run the office professionally. And I think as the governor

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Speaker 1: and the Attorney General and others here in Massachusetts have said,

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Speaker 1: we're going to back the legalizing of marijuana. That's what

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Speaker 1: voters wanted. We want to make sure it's safe and

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Speaker 1: it's regulated. You know. I think that people are going

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Speaker 1: to watch very closely to what the new U. S.

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Speaker 1: Attorney not only says, but what he does. But I

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Speaker 1: think there is a growing sense that in light of

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Speaker 1: the public support for this the regulation in place. UM,

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Speaker 1: I think people know there's always uncertainty here, but that

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Speaker 1: it's less and less likely that unless there is illegal

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Speaker 1: activity even under state law, whether it's money laundering or

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Speaker 1: something that to even violate state law. You know, I

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Speaker 1: think the history of that office and what this U. S.

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Speaker 1: Attorney says, I think makes it less likely that there

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Speaker 1: will be you know, enforcement at the federal level, something

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Speaker 1: that nobody locally wants to see happen. By and large,

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Speaker 1: Sessions has given US attorney's discretion to do that. I

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Speaker 1: know there were U. S. Attorneys who have spoken more

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Speaker 1: forcefully about not going forward on these cases, but I

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Speaker 1: think this U S. Attorney is pretty much signaled that

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Speaker 1: he wants to keep his options open, but he will

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Speaker 1: be guided by what the resources of his office are

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Speaker 1: and looking at things on a casebook case basis. And

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Speaker 1: yet some medical marijuana businesses that are already licensed have

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Speaker 1: done away with using credit cards. They have cash only transactions,

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Speaker 1: so there won't be a record, and there are some

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Speaker 1: fears some investors supposed least taking a step back. Yes,

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Speaker 1: and I think that was inevitable with the Sessions recall

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Speaker 1: of those memos and giving both discretion to individual US

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Speaker 1: attorneys and some of the comments that the office in

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Speaker 1: Boston has made. But again that uncertainty has always been

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Speaker 1: in the background, and so there are some steps that

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Speaker 1: have been made. And of course the big issue is

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Speaker 1: really and always has been for Colorado initially and for

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Speaker 1: other states, what about handling the money. But I do

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Speaker 1: think as Massachusetts wants to proceed with this and there's

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Speaker 1: a great effort on the ground level here, even again

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Speaker 1: by former opponents of legalizing a marijuana saying, you know,

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Speaker 1: this ship has sailed. We are going to make this

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Speaker 1: work in Massachusetts. And so I think you'll see some

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Speaker 1: investors be skittish, naturally, but I still think that this

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Speaker 1: will proceed and people will be watching the U. S.

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Speaker 1: Attorney's Office closely, not just for what it says, but

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Speaker 1: what it does. Turning to another subject, privacy in this

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Speaker 1: digital era is in the headlines all the time. The

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Speaker 1: Supreme Court hinted in oral arguments in November that it

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Speaker 1: may curb the power of law enforcement officials to track

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Speaker 1: people using mobile phone data. At the end of Steer,

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Speaker 1: the Massachusetts legislature refused to update the state's wire tap

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Speaker 1: law to give prosecutors broader powers to conduct wire taps.

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Speaker 1: You like the governor in Massachusetts, district attorneys support changing

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Speaker 1: the law. Why I think the effort recently in Massachusetts,

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Speaker 1: at least from my point of view, is to try

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Speaker 1: while maintaining privacy and keeping the safeguards. It's still got

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Speaker 1: to be judicially approved, It's still has to come under

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Speaker 1: supervision of the courts, and that it would be time

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Speaker 1: to update the Massachusetts statutes so that district attorneys and

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Speaker 1: the Attorney General could deal with what we see as

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Speaker 1: the new reality of street organized crown that's lucrative, that

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Speaker 1: is dealing in violence, that's dealing in guns and drugs

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Speaker 1: and human trafficking, and it's very difficult to break up

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Speaker 1: or to bring to accountability without the use of judicially

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Speaker 1: overseen wirecaps. There's a great resistance to that, I think

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Speaker 1: still in Massachusetts, and that's historically. I understand that, you know,

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Speaker 1: we are a state that values the privacy of our citizens,

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Speaker 1: and so this always the discussion that law enforcement has

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Speaker 1: with others in the state about how we keep people

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Speaker 1: safe and how we protect individuals privacy. Is it likely

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Speaker 1: that the legislature will update the wire tap law anytime soon.

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Speaker 1: I don't see them happening in the near future. And

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Speaker 1: and certainly this discussion about criminal you know, judicially overseen

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Speaker 1: wire taps and privacy, of course, is much more widespread

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Speaker 1: in in the other sector in terms of civil law.

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Speaker 1: What what kind of privacy is due to individuals who

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Speaker 1: keep their emails and keep their information in the cloud,

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Speaker 1: for instance, and as we have these debates about how

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Speaker 1: do you protect privacy and confidentiality in the digital age.

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Speaker 1: In some ways, the criminal justice issues have taken a

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Speaker 1: little bit of a back seat. I think to that discussion.

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Speaker 1: That's former Massachusetts Attorney General Martha Cokeley, now our partner

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Speaker 1: at Foley Hoak. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Grosso.

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Speaker 1: This is Bloomberg