1
00:00:00,160 --> 00:00:04,519
Speaker 1: After prosecutors rested their case against Senator Robert Menendez yesterday,

2
00:00:04,800 --> 00:00:08,039
Speaker 1: Menendez left the courtroom with his lawyers and daughter. He

3
00:00:08,119 --> 00:00:11,920
Speaker 1: could be heard singing Amazing Grace in the courts elevator.

4
00:00:12,400 --> 00:00:15,360
Speaker 1: That may be because the judge had suggested he might

5
00:00:15,440 --> 00:00:19,360
Speaker 1: dismiss the twelve bribery charges against Menendez, the heart of

6
00:00:19,400 --> 00:00:22,920
Speaker 1: the prosecution's case, citing a Supreme Court ruling that has

7
00:00:22,920 --> 00:00:27,400
Speaker 1: derailed several high profile public corruption cases. The prosecution has

8
00:00:27,440 --> 00:00:30,960
Speaker 1: presented more than thirty witnesses in six weeks of testimony

9
00:00:31,240 --> 00:00:34,440
Speaker 1: to prove their accusations that the New Jersey Democrat took

10
00:00:34,479 --> 00:00:39,240
Speaker 1: bribes from his co defendant, including campaign donations and luxury trips,

11
00:00:39,479 --> 00:00:43,519
Speaker 1: in exchange for Menendez inter intervening on his behalf in

12
00:00:43,680 --> 00:00:47,680
Speaker 1: various disputes with the US and Dominican governments. Joining us

13
00:00:47,680 --> 00:00:50,640
Speaker 1: to answer the many questions this case has brought up

14
00:00:50,680 --> 00:00:54,000
Speaker 1: are Robert Mints, head of the Criminal Investigations and White

15
00:00:54,000 --> 00:00:57,000
Speaker 1: Color Practice at mcarter in English and a former federal

16
00:00:57,040 --> 00:01:00,520
Speaker 1: prosecutor in New Jersey, and Robert Him, founding partner of

17
00:01:00,560 --> 00:01:03,240
Speaker 1: Myers and Him, and a former assistant regional director of

18
00:01:03,280 --> 00:01:07,480
Speaker 1: the SEC Bob Mints there were three hours of legal

19
00:01:07,560 --> 00:01:11,080
Speaker 1: arguments in which the defense urged Judge William Wallas to

20
00:01:11,160 --> 00:01:14,440
Speaker 1: dismiss the case before it goes to the jury on

21
00:01:14,480 --> 00:01:17,880
Speaker 1: the basis of the Supreme Court's decision in the case

22
00:01:17,880 --> 00:01:21,600
Speaker 1: of former Virginia Governor Bob McDonald. Will you explain the

23
00:01:21,640 --> 00:01:27,440
Speaker 1: defense argument short June. The McDonald case is going to

24
00:01:27,520 --> 00:01:30,440
Speaker 1: play a huge role in the ultimate outcome of this

25
00:01:30,640 --> 00:01:34,840
Speaker 1: trial because what the McDonald case did was to narrow

26
00:01:34,920 --> 00:01:38,760
Speaker 1: the scope of what the Supreme Court said constituted an

27
00:01:38,760 --> 00:01:43,720
Speaker 1: official act that would form the basis of a bribery charge.

28
00:01:43,800 --> 00:01:46,640
Speaker 1: So ess actually, what the court said is there has

29
00:01:46,720 --> 00:01:50,080
Speaker 1: to be an official act performed by a public official

30
00:01:50,160 --> 00:01:54,000
Speaker 1: in exchange for some kind of bribe. And what people

31
00:01:54,040 --> 00:01:56,440
Speaker 1: thought going to this trial was going to be the

32
00:01:56,520 --> 00:01:58,920
Speaker 1: key to this case was the government's ability to prove

33
00:01:59,000 --> 00:02:01,440
Speaker 1: that the actions take and by Centator Menendez were in

34
00:02:01,520 --> 00:02:06,040
Speaker 1: fact official acts. But instead the focus has now shifted

35
00:02:06,280 --> 00:02:09,760
Speaker 1: to the question of whether the bribes meet the standard

36
00:02:09,800 --> 00:02:12,840
Speaker 1: of McDonald because the government has been unable to prove

37
00:02:12,880 --> 00:02:16,440
Speaker 1: that there was a direct quid pro quo relationship between

38
00:02:16,480 --> 00:02:19,200
Speaker 1: the acts and the gifts, and instead the government has

39
00:02:19,240 --> 00:02:23,520
Speaker 1: relied on this stream of benefit steery which Judge Walls,

40
00:02:23,560 --> 00:02:26,480
Speaker 1: the judge presiding over this case, has called into question,

41
00:02:28,320 --> 00:02:31,000
Speaker 1: Bob behind, Does that seem to you that the judge

42
00:02:31,000 --> 00:02:33,640
Speaker 1: in the case uh seems to be looking at the

43
00:02:33,639 --> 00:02:36,600
Speaker 1: case just the way Bob Mints described, where the issue

44
00:02:36,639 --> 00:02:39,399
Speaker 1: is less whether these were official acts than the connection

45
00:02:39,480 --> 00:02:44,480
Speaker 1: between uh, what Senator Menendez received and the things that

46
00:02:44,520 --> 00:02:47,520
Speaker 1: he did. Does that seem to you to be a

47
00:02:47,600 --> 00:02:52,200
Speaker 1: reasonable application of the McDonald McDonald's decision. Is that what

48
00:02:52,280 --> 00:02:55,000
Speaker 1: the Supreme Court had in mind when it narrowed the

49
00:02:55,000 --> 00:02:58,160
Speaker 1: scope of the corruption laws? Well, I think it certainly

50
00:02:58,200 --> 00:03:02,359
Speaker 1: represents a very big rise both for the government and

51
00:03:02,800 --> 00:03:07,239
Speaker 1: Senator Menendez. That Judge Walls, instead of focusing on whether

52
00:03:07,360 --> 00:03:12,799
Speaker 1: Senator Menendez's actions were official acts under the McDonald decision,

53
00:03:12,880 --> 00:03:16,000
Speaker 1: the Supreme Court Judge Wallace has now seemed to shift

54
00:03:16,160 --> 00:03:20,720
Speaker 1: his analysis to a big concern about whether those activities

55
00:03:20,760 --> 00:03:25,359
Speaker 1: were in exchange for the contributions and other benefits that

56
00:03:25,840 --> 00:03:30,240
Speaker 1: Dr Mngel was providing to Senator Menendez. And this is

57
00:03:30,240 --> 00:03:33,240
Speaker 1: a little bit of a departure from what what was

58
00:03:33,280 --> 00:03:37,080
Speaker 1: anticipated because the McDonald decision from the Supreme Court had

59
00:03:37,120 --> 00:03:40,720
Speaker 1: focused very heavily on what constitutes an official act, and

60
00:03:40,840 --> 00:03:44,680
Speaker 1: that decision had said routine activities by legislators, such as

61
00:03:44,720 --> 00:03:48,760
Speaker 1: setting up meetings and organizing events and even contacting government

62
00:03:48,800 --> 00:03:52,200
Speaker 1: officials would not constitute official acts. And a lot of

63
00:03:52,200 --> 00:03:56,440
Speaker 1: the parties um before Judge Walls, in particular Senor Menendez

64
00:03:56,480 --> 00:03:59,560
Speaker 1: and Department Justice had fought over that issue, and now

65
00:03:59,600 --> 00:04:01,680
Speaker 1: it seems like an entirely different issue has come up.

66
00:04:02,120 --> 00:04:06,360
Speaker 1: The prosecutor said in the arguments yesterday, your honor would

67
00:04:06,360 --> 00:04:08,960
Speaker 1: be the first court in the nation to invalidate the

68
00:04:09,040 --> 00:04:12,680
Speaker 1: stream of benefits theory of bribery, and Judge Wall said,

69
00:04:12,800 --> 00:04:15,120
Speaker 1: of course I'm the first one because I'm the only

70
00:04:15,160 --> 00:04:20,120
Speaker 1: one being tried. Now, Bob, we have about thirty seconds here.

71
00:04:21,279 --> 00:04:24,840
Speaker 1: What happens if he does this and then is there

72
00:04:24,839 --> 00:04:27,320
Speaker 1: any hope for the prosecution? Then would they have to

73
00:04:27,400 --> 00:04:29,599
Speaker 1: retry this if it went on appeal and when he

74
00:04:29,680 --> 00:04:34,200
Speaker 1: was reversed. Yes, I mean if if, if as it seems,

75
00:04:34,279 --> 00:04:38,560
Speaker 1: Judge Walls is going to reject this stream of benefits theory,

76
00:04:38,760 --> 00:04:42,400
Speaker 1: then the government has virtually conceded that it's bribery charges

77
00:04:42,680 --> 00:04:45,960
Speaker 1: would end up being dismissed. There'd be other charges that

78
00:04:46,000 --> 00:04:48,839
Speaker 1: would still go to the jury, but ultimately the stream

79
00:04:48,839 --> 00:04:52,279
Speaker 1: of benefits uh decision would be taken up on appeal

80
00:04:52,400 --> 00:04:55,120
Speaker 1: and would be decided by a higher court. We've been

81
00:04:55,160 --> 00:04:58,880
Speaker 1: talking about the possibility that Judge William Walls may dismiss

82
00:04:58,960 --> 00:05:02,640
Speaker 1: the bribery charge against Senator Robert Menendez. We've been talking

83
00:05:02,640 --> 00:05:06,400
Speaker 1: with Robert Mints of Partner McCarter and English and Robert Heim,

84
00:05:06,400 --> 00:05:11,040
Speaker 1: partner at Myers and Him Bob Him. Judge Walls said

85
00:05:11,480 --> 00:05:14,960
Speaker 1: during the hours of argument that the prosecutors appeared to

86
00:05:15,000 --> 00:05:18,600
Speaker 1: have satisfied their new requirements for proving an official act,

87
00:05:18,680 --> 00:05:22,840
Speaker 1: but then he questioned whether they had shown that these

88
00:05:23,800 --> 00:05:27,120
Speaker 1: specific bribes were linked to specific actions the so called

89
00:05:27,160 --> 00:05:31,520
Speaker 1: stream of benefits theory. Would it be unusual for a judge,

90
00:05:31,560 --> 00:05:35,240
Speaker 1: after the prosecution has presented its entire case, to dismiss

91
00:05:35,920 --> 00:05:39,800
Speaker 1: the main charges at this point instead of allowing it

92
00:05:39,920 --> 00:05:43,080
Speaker 1: to go to the jury. Well, it would not be

93
00:05:43,160 --> 00:05:46,760
Speaker 1: unusual if Judge Walls feels that the government simply has

94
00:05:46,800 --> 00:05:49,920
Speaker 1: not met the legal standard that was set by the

95
00:05:50,000 --> 00:05:54,080
Speaker 1: McDonald's decision in the Supreme Court. The essence of what

96
00:05:54,200 --> 00:05:56,840
Speaker 1: Judge Walls has to do is decide whether there is

97
00:05:56,920 --> 00:06:00,840
Speaker 1: legally sufficient grounds to allow the case to go to jury,

98
00:06:00,880 --> 00:06:04,560
Speaker 1: and that's a decision the judge is uniquely satisfied to make,

99
00:06:04,960 --> 00:06:07,239
Speaker 1: and it's something that he's going to have to decide

100
00:06:07,240 --> 00:06:09,880
Speaker 1: before allowing the case to go to the jury. So

101
00:06:09,920 --> 00:06:13,520
Speaker 1: that's why the judge had asked for the input of

102
00:06:13,520 --> 00:06:15,719
Speaker 1: the attorneys, and it looks like he's also going to

103
00:06:15,760 --> 00:06:18,800
Speaker 1: accept briefing from the attorneys over the next couple of

104
00:06:18,839 --> 00:06:22,080
Speaker 1: days and make a decision as early as early next week.

105
00:06:23,320 --> 00:06:25,440
Speaker 1: Bob Men's if the judge does the sort of thing

106
00:06:25,480 --> 00:06:27,960
Speaker 1: we're talking about, if he says there's no stream of

107
00:06:28,000 --> 00:06:31,400
Speaker 1: benefits theory, um, and I'm gonna throw out this case

108
00:06:31,480 --> 00:06:34,240
Speaker 1: or at least these charges, what is left of our

109
00:06:34,279 --> 00:06:36,880
Speaker 1: federal bribery laws. Are we we then to the point

110
00:06:36,880 --> 00:06:39,160
Speaker 1: where you have to have a very explicit quid pro

111
00:06:39,320 --> 00:06:43,960
Speaker 1: quo between a particular bribe and a particular official act.

112
00:06:45,360 --> 00:06:47,240
Speaker 1: But that's a great question, and that's one of the

113
00:06:47,240 --> 00:06:51,279
Speaker 1: reasons this case is being so closely watched because even

114
00:06:51,320 --> 00:06:54,240
Speaker 1: though in the wake of McDonald there's been a number

115
00:06:54,400 --> 00:06:58,560
Speaker 1: of convictions of public corruption cases that have been reversed,

116
00:06:58,680 --> 00:07:02,159
Speaker 1: all of those other cases were reversed because they were

117
00:07:02,400 --> 00:07:06,159
Speaker 1: trials that were conducted before McDonald came down, so the

118
00:07:06,279 --> 00:07:10,040
Speaker 1: jury instructions that were given in those cases didn't comport

119
00:07:10,120 --> 00:07:13,680
Speaker 1: with McDonald. This is the first high profile corruption case

120
00:07:13,760 --> 00:07:16,680
Speaker 1: that is being done after McDonald, and so everybody's looking

121
00:07:16,760 --> 00:07:19,840
Speaker 1: very closely at what those jury instructions are going to

122
00:07:19,920 --> 00:07:22,520
Speaker 1: be here and and the question of whether the quid

123
00:07:22,560 --> 00:07:25,560
Speaker 1: pro coil has to be that specific is still an

124
00:07:25,560 --> 00:07:28,760
Speaker 1: open question and it really will have an impact on

125
00:07:28,880 --> 00:07:32,800
Speaker 1: public corruption cases for years to come until the higher

126
00:07:32,840 --> 00:07:36,520
Speaker 1: courts clarify this issue. Does it have to be very

127
00:07:36,600 --> 00:07:40,240
Speaker 1: directly tied, as the defense argues, so that when a

128
00:07:41,200 --> 00:07:43,720
Speaker 1: gift is given, at the very same time the gift

129
00:07:43,800 --> 00:07:45,960
Speaker 1: is given, there has to be a specific official act

130
00:07:46,000 --> 00:07:48,240
Speaker 1: that's tied to it. That's what the defense wants. The

131
00:07:48,320 --> 00:07:50,840
Speaker 1: government is saying it doesn't have to be that specific,

132
00:07:51,240 --> 00:07:54,480
Speaker 1: and that you can essentially put somebody on retainer where

133
00:07:54,480 --> 00:07:56,560
Speaker 1: you give them the gift and know that at some

134
00:07:56,640 --> 00:07:58,960
Speaker 1: point in the future when you need them, you will

135
00:07:59,000 --> 00:08:01,840
Speaker 1: take the official act on their behalf. That's where the

136
00:08:01,880 --> 00:08:04,640
Speaker 1: defense is, that's where the prosecution is, and that's part

137
00:08:04,680 --> 00:08:07,440
Speaker 1: of this case that's undecided. But let's talk a little

138
00:08:07,440 --> 00:08:10,200
Speaker 1: bit more about how big a blow this would be

139
00:08:10,320 --> 00:08:13,200
Speaker 1: a loss in this case for the Justice Department, or

140
00:08:13,240 --> 00:08:16,000
Speaker 1: at least a loss in the bribery aspect of it.

141
00:08:16,480 --> 00:08:21,240
Speaker 1: How will the Justice Department decide about the cases that

142
00:08:21,280 --> 00:08:24,360
Speaker 1: have been reversed whether to go forward, for example, you

143
00:08:24,400 --> 00:08:28,200
Speaker 1: know New York State Assembly Speaker Sheldon Silver and Dean Scalos.

144
00:08:28,240 --> 00:08:31,720
Speaker 1: How will they make that decision if they don't have

145
00:08:31,920 --> 00:08:35,360
Speaker 1: the context of what they have to prove. Well, that's

146
00:08:35,400 --> 00:08:38,760
Speaker 1: going to be a very factual based decision and a

147
00:08:38,880 --> 00:08:42,600
Speaker 1: very detailed review of the evidence to really determine what

148
00:08:42,720 --> 00:08:47,240
Speaker 1: the prosecutors can prove in terms of official acts, as

149
00:08:47,360 --> 00:08:50,680
Speaker 1: McDonald court had held, things such as meetings and setting

150
00:08:50,760 --> 00:08:53,920
Speaker 1: up events and other things that might be considered more

151
00:08:54,040 --> 00:08:59,240
Speaker 1: routine UM legislative activities would not constitute official acts. So

152
00:08:59,640 --> 00:09:01,840
Speaker 1: what the Apartment of Justice would have to do would

153
00:09:01,840 --> 00:09:04,480
Speaker 1: be to review the evidence it has to see if

154
00:09:04,480 --> 00:09:08,079
Speaker 1: that evidence is sufficient UM to to meet the new standard,

155
00:09:08,120 --> 00:09:11,360
Speaker 1: to determine whether or not UM the conduct goes beyond

156
00:09:11,400 --> 00:09:14,920
Speaker 1: those things and actually UM in comports with the new

157
00:09:15,040 --> 00:09:18,240
Speaker 1: standard that McDonald has laid out. I think UM any

158
00:09:18,280 --> 00:09:21,600
Speaker 1: decision in the menendeous case that limits the stream of

159
00:09:21,600 --> 00:09:24,640
Speaker 1: benefits theory would would have a huge impact on the

160
00:09:24,679 --> 00:09:27,480
Speaker 1: way the Department of Justice looks at these cases in

161
00:09:27,520 --> 00:09:30,240
Speaker 1: the future, and it's going to certainly make it a

162
00:09:30,320 --> 00:09:33,880
Speaker 1: much more limited set of cases that the Department will

163
00:09:33,960 --> 00:09:37,760
Speaker 1: successfully be able to prosecute. Bob Min's let me sort

164
00:09:37,760 --> 00:09:40,560
Speaker 1: of attack in the other direction and ask you, was

165
00:09:40,600 --> 00:09:42,640
Speaker 1: it at all a surprise to you or would it

166
00:09:42,640 --> 00:09:45,400
Speaker 1: be a surprise to you if the judge says that

167
00:09:45,440 --> 00:09:49,240
Speaker 1: the government has cleared the official act hurdle, that's um

168
00:09:49,840 --> 00:09:52,000
Speaker 1: as we're talking earlier, seemed to be the thing that

169
00:09:52,080 --> 00:09:54,840
Speaker 1: might be the biggest obstacle for the government in this case.

170
00:09:54,920 --> 00:09:57,240
Speaker 1: But from his comments the other day, the judge sounded

171
00:09:57,320 --> 00:10:00,559
Speaker 1: like he may be satisfied that the government has has

172
00:10:00,559 --> 00:10:04,960
Speaker 1: achieved that here. Yeah, I think this this turn of

173
00:10:05,000 --> 00:10:10,240
Speaker 1: events has surprised everybody because the McDonald case really focused

174
00:10:10,320 --> 00:10:14,199
Speaker 1: on whether the conduct constituted an official act, and I

175
00:10:14,600 --> 00:10:17,800
Speaker 1: think frankly, the Prostitution and even the defense focused much

176
00:10:17,840 --> 00:10:20,720
Speaker 1: of their case and mixture of their argument on that

177
00:10:21,000 --> 00:10:25,040
Speaker 1: on that hurdle in satisfying McDonald, rather than the question

178
00:10:25,400 --> 00:10:29,200
Speaker 1: of whether the gifts constituted bribes or not. And so

179
00:10:29,360 --> 00:10:33,840
Speaker 1: it has really shifted the focus of what constitutes uh

180
00:10:34,000 --> 00:10:40,040
Speaker 1: a political corruption case that is likely to stand constitutional muster.

181
00:10:40,360 --> 00:10:43,200
Speaker 1: And regardless I think of what Judge Walls does in

182
00:10:43,240 --> 00:10:46,040
Speaker 1: this case, We're going to see other cases where other

183
00:10:46,120 --> 00:10:49,600
Speaker 1: judges are going to have to grapple with the import

184
00:10:49,679 --> 00:10:51,800
Speaker 1: of McDonald and and I'm going to are going to

185
00:10:51,840 --> 00:10:54,720
Speaker 1: have to address this question of whether a stream of

186
00:10:54,760 --> 00:10:59,920
Speaker 1: benefits is enough to satisfy that prong of the briber statute.

187
00:11:00,360 --> 00:11:03,040
Speaker 1: I want to thank you both for being on Bloomberg Law.

188
00:11:03,160 --> 00:11:06,160
Speaker 1: That's Robert Mints. He is a partner at McCarter in

189
00:11:06,200 --> 00:11:10,480
Speaker 1: English and Robert him founding partner of Myers and Heim.

190
00:11:10,520 --> 00:11:13,240
Speaker 1: And the trial is in recess until Monday. The judge

191
00:11:13,280 --> 00:11:15,880
Speaker 1: will announce then whether he's going to dismiss the bribery

192
00:11:16,000 --> 00:11:19,320
Speaker 1: charges even if he had does. He has indicated that

193
00:11:19,440 --> 00:11:22,160
Speaker 1: he will allow the trial to go forward as far

194
00:11:22,240 --> 00:11:25,880
Speaker 1: as the false statements count. And those are the accounts

195
00:11:25,960 --> 00:11:31,600
Speaker 1: that alleged that Robert Menendez did not report his various

196
00:11:32,720 --> 00:11:36,880
Speaker 1: gifts on the on the on statements that he had

197
00:11:36,920 --> 00:11:39,280
Speaker 1: to make as a United States senator,