WEBVTT - Bribery Case Against Menendez Could be Dismissed (Audio)

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<v Speaker 1>After prosecutors rested their case against Senator Robert Menendez yesterday,

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<v Speaker 1>Menendez left the courtroom with his lawyers and daughter. He

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<v Speaker 1>could be heard singing Amazing Grace in the courts elevator.

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<v Speaker 1>That may be because the judge had suggested he might

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<v Speaker 1>dismiss the twelve bribery charges against Menendez, the heart of

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<v Speaker 1>the prosecution's case, citing a Supreme Court ruling that has

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<v Speaker 1>derailed several high profile public corruption cases. The prosecution has

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<v Speaker 1>presented more than thirty witnesses in six weeks of testimony

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<v Speaker 1>to prove their accusations that the New Jersey Democrat took

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<v Speaker 1>bribes from his co defendant, including campaign donations and luxury trips,

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<v Speaker 1>in exchange for Menendez inter intervening on his behalf in

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<v Speaker 1>various disputes with the US and Dominican governments. Joining us

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<v Speaker 1>to answer the many questions this case has brought up

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<v Speaker 1>are Robert Mints, head of the Criminal Investigations and White

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<v Speaker 1>Color Practice at mcarter in English and a former federal

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<v Speaker 1>prosecutor in New Jersey, and Robert Him, founding partner of

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<v Speaker 1>Myers and Him, and a former assistant regional director of

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<v Speaker 1>the SEC Bob Mints there were three hours of legal

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<v Speaker 1>arguments in which the defense urged Judge William Wallas to

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<v Speaker 1>dismiss the case before it goes to the jury on

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<v Speaker 1>the basis of the Supreme Court's decision in the case

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<v Speaker 1>of former Virginia Governor Bob McDonald. Will you explain the

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<v Speaker 1>defense argument short June. The McDonald case is going to

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<v Speaker 1>play a huge role in the ultimate outcome of this

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<v Speaker 1>trial because what the McDonald case did was to narrow

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<v Speaker 1>the scope of what the Supreme Court said constituted an

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<v Speaker 1>official act that would form the basis of a bribery charge.

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<v Speaker 1>So ess actually, what the court said is there has

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<v Speaker 1>to be an official act performed by a public official

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<v Speaker 1>in exchange for some kind of bribe. And what people

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<v Speaker 1>thought going to this trial was going to be the

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<v Speaker 1>key to this case was the government's ability to prove

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<v Speaker 1>that the actions take and by Centator Menendez were in

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<v Speaker 1>fact official acts. But instead the focus has now shifted

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<v Speaker 1>to the question of whether the bribes meet the standard

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<v Speaker 1>of McDonald because the government has been unable to prove

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<v Speaker 1>that there was a direct quid pro quo relationship between

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<v Speaker 1>the acts and the gifts, and instead the government has

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<v Speaker 1>relied on this stream of benefit steery which Judge Walls,

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<v Speaker 1>the judge presiding over this case, has called into question,

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<v Speaker 1>Bob behind, Does that seem to you that the judge

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<v Speaker 1>in the case uh seems to be looking at the

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<v Speaker 1>case just the way Bob Mints described, where the issue

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<v Speaker 1>is less whether these were official acts than the connection

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<v Speaker 1>between uh, what Senator Menendez received and the things that

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<v Speaker 1>he did. Does that seem to you to be a

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<v Speaker 1>reasonable application of the McDonald McDonald's decision. Is that what

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<v Speaker 1>the Supreme Court had in mind when it narrowed the

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<v Speaker 1>scope of the corruption laws? Well, I think it certainly

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<v Speaker 1>represents a very big rise both for the government and

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<v Speaker 1>Senator Menendez. That Judge Walls, instead of focusing on whether

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<v Speaker 1>Senator Menendez's actions were official acts under the McDonald decision,

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<v Speaker 1>the Supreme Court Judge Wallace has now seemed to shift

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<v Speaker 1>his analysis to a big concern about whether those activities

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<v Speaker 1>were in exchange for the contributions and other benefits that

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<v Speaker 1>Dr Mngel was providing to Senator Menendez. And this is

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<v Speaker 1>a little bit of a departure from what what was

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<v Speaker 1>anticipated because the McDonald decision from the Supreme Court had

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<v Speaker 1>focused very heavily on what constitutes an official act, and

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<v Speaker 1>that decision had said routine activities by legislators, such as

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<v Speaker 1>setting up meetings and organizing events and even contacting government

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<v Speaker 1>officials would not constitute official acts. And a lot of

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<v Speaker 1>the parties um before Judge Walls, in particular Senor Menendez

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<v Speaker 1>and Department Justice had fought over that issue, and now

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<v Speaker 1>it seems like an entirely different issue has come up.

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<v Speaker 1>The prosecutor said in the arguments yesterday, your honor would

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<v Speaker 1>be the first court in the nation to invalidate the

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<v Speaker 1>stream of benefits theory of bribery, and Judge Wall said,

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<v Speaker 1>of course I'm the first one because I'm the only

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<v Speaker 1>one being tried. Now, Bob, we have about thirty seconds here.

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<v Speaker 1>What happens if he does this and then is there

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<v Speaker 1>any hope for the prosecution? Then would they have to

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<v Speaker 1>retry this if it went on appeal and when he

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<v Speaker 1>was reversed. Yes, I mean if if, if as it seems,

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<v Speaker 1>Judge Walls is going to reject this stream of benefits theory,

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<v Speaker 1>then the government has virtually conceded that it's bribery charges

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<v Speaker 1>would end up being dismissed. There'd be other charges that

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<v Speaker 1>would still go to the jury, but ultimately the stream

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<v Speaker 1>of benefits uh decision would be taken up on appeal

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<v Speaker 1>and would be decided by a higher court. We've been

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<v Speaker 1>talking about the possibility that Judge William Walls may dismiss

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<v Speaker 1>the bribery charge against Senator Robert Menendez. We've been talking

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<v Speaker 1>with Robert Mints of Partner McCarter and English and Robert Heim,

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<v Speaker 1>partner at Myers and Him Bob Him. Judge Walls said

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<v Speaker 1>during the hours of argument that the prosecutors appeared to

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<v Speaker 1>have satisfied their new requirements for proving an official act,

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<v Speaker 1>but then he questioned whether they had shown that these

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<v Speaker 1>specific bribes were linked to specific actions the so called

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<v Speaker 1>stream of benefits theory. Would it be unusual for a judge,

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<v Speaker 1>after the prosecution has presented its entire case, to dismiss

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<v Speaker 1>the main charges at this point instead of allowing it

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<v Speaker 1>to go to the jury. Well, it would not be

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<v Speaker 1>unusual if Judge Walls feels that the government simply has

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<v Speaker 1>not met the legal standard that was set by the

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<v Speaker 1>McDonald's decision in the Supreme Court. The essence of what

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<v Speaker 1>Judge Walls has to do is decide whether there is

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<v Speaker 1>legally sufficient grounds to allow the case to go to jury,

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<v Speaker 1>and that's a decision the judge is uniquely satisfied to make,

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<v Speaker 1>and it's something that he's going to have to decide

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<v Speaker 1>before allowing the case to go to the jury. So

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<v Speaker 1>that's why the judge had asked for the input of

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<v Speaker 1>the attorneys, and it looks like he's also going to

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<v Speaker 1>accept briefing from the attorneys over the next couple of

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<v Speaker 1>days and make a decision as early as early next week.

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<v Speaker 1>Bob Men's if the judge does the sort of thing

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<v Speaker 1>we're talking about, if he says there's no stream of

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<v Speaker 1>benefits theory, um, and I'm gonna throw out this case

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<v Speaker 1>or at least these charges, what is left of our

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<v Speaker 1>federal bribery laws. Are we we then to the point

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<v Speaker 1>where you have to have a very explicit quid pro

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<v Speaker 1>quo between a particular bribe and a particular official act.

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<v Speaker 1>But that's a great question, and that's one of the

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<v Speaker 1>reasons this case is being so closely watched because even

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<v Speaker 1>though in the wake of McDonald there's been a number

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<v Speaker 1>of convictions of public corruption cases that have been reversed,

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<v Speaker 1>all of those other cases were reversed because they were

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<v Speaker 1>trials that were conducted before McDonald came down, so the

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<v Speaker 1>jury instructions that were given in those cases didn't comport

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<v Speaker 1>with McDonald. This is the first high profile corruption case

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<v Speaker 1>that is being done after McDonald, and so everybody's looking

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<v Speaker 1>very closely at what those jury instructions are going to

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<v Speaker 1>be here and and the question of whether the quid

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<v Speaker 1>pro coil has to be that specific is still an

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<v Speaker 1>open question and it really will have an impact on

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<v Speaker 1>public corruption cases for years to come until the higher

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<v Speaker 1>courts clarify this issue. Does it have to be very

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<v Speaker 1>directly tied, as the defense argues, so that when a

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<v Speaker 1>gift is given, at the very same time the gift

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<v Speaker 1>is given, there has to be a specific official act

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<v Speaker 1>that's tied to it. That's what the defense wants. The

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<v Speaker 1>government is saying it doesn't have to be that specific,

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<v Speaker 1>and that you can essentially put somebody on retainer where

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<v Speaker 1>you give them the gift and know that at some

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<v Speaker 1>point in the future when you need them, you will

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<v Speaker 1>take the official act on their behalf. That's where the

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<v Speaker 1>defense is, that's where the prosecution is, and that's part

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<v Speaker 1>of this case that's undecided. But let's talk a little

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<v Speaker 1>bit more about how big a blow this would be

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<v Speaker 1>a loss in this case for the Justice Department, or

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<v Speaker 1>at least a loss in the bribery aspect of it.

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<v Speaker 1>How will the Justice Department decide about the cases that

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<v Speaker 1>have been reversed whether to go forward, for example, you

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<v Speaker 1>know New York State Assembly Speaker Sheldon Silver and Dean Scalos.

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<v Speaker 1>How will they make that decision if they don't have

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<v Speaker 1>the context of what they have to prove. Well, that's

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<v Speaker 1>going to be a very factual based decision and a

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<v Speaker 1>very detailed review of the evidence to really determine what

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<v Speaker 1>the prosecutors can prove in terms of official acts, as

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<v Speaker 1>McDonald court had held, things such as meetings and setting

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<v Speaker 1>up events and other things that might be considered more

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<v Speaker 1>routine UM legislative activities would not constitute official acts. So

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<v Speaker 1>what the Apartment of Justice would have to do would

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<v Speaker 1>be to review the evidence it has to see if

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<v Speaker 1>that evidence is sufficient UM to to meet the new standard,

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<v Speaker 1>to determine whether or not UM the conduct goes beyond

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<v Speaker 1>those things and actually UM in comports with the new

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<v Speaker 1>standard that McDonald has laid out. I think UM any

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<v Speaker 1>decision in the menendeous case that limits the stream of

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<v Speaker 1>benefits theory would would have a huge impact on the

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<v Speaker 1>way the Department of Justice looks at these cases in

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<v Speaker 1>the future, and it's going to certainly make it a

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<v Speaker 1>much more limited set of cases that the Department will

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<v Speaker 1>successfully be able to prosecute. Bob Min's let me sort

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<v Speaker 1>of attack in the other direction and ask you, was

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<v Speaker 1>it at all a surprise to you or would it

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<v Speaker 1>be a surprise to you if the judge says that

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<v Speaker 1>the government has cleared the official act hurdle, that's um

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<v Speaker 1>as we're talking earlier, seemed to be the thing that

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<v Speaker 1>might be the biggest obstacle for the government in this case.

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<v Speaker 1>But from his comments the other day, the judge sounded

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<v Speaker 1>like he may be satisfied that the government has has

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<v Speaker 1>achieved that here. Yeah, I think this this turn of

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<v Speaker 1>events has surprised everybody because the McDonald case really focused

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<v Speaker 1>on whether the conduct constituted an official act, and I

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<v Speaker 1>think frankly, the Prostitution and even the defense focused much

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<v Speaker 1>of their case and mixture of their argument on that

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<v Speaker 1>on that hurdle in satisfying McDonald, rather than the question

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<v Speaker 1>of whether the gifts constituted bribes or not. And so

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<v Speaker 1>it has really shifted the focus of what constitutes uh

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<v Speaker 1>a political corruption case that is likely to stand constitutional muster.

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<v Speaker 1>And regardless I think of what Judge Walls does in

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<v Speaker 1>this case, We're going to see other cases where other

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<v Speaker 1>judges are going to have to grapple with the import

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<v Speaker 1>of McDonald and and I'm going to are going to

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<v Speaker 1>have to address this question of whether a stream of

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<v Speaker 1>benefits is enough to satisfy that prong of the briber statute.

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<v Speaker 1>I want to thank you both for being on Bloomberg Law.

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<v Speaker 1>That's Robert Mints. He is a partner at McCarter in

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<v Speaker 1>English and Robert him founding partner of Myers and Heim.

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<v Speaker 1>And the trial is in recess until Monday. The judge

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<v Speaker 1>will announce then whether he's going to dismiss the bribery

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<v Speaker 1>charges even if he had does. He has indicated that

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<v Speaker 1>he will allow the trial to go forward as far

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<v Speaker 1>as the false statements count. And those are the accounts

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<v Speaker 1>that alleged that Robert Menendez did not report his various

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<v Speaker 1>gifts on the on the on statements that he had

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<v Speaker 1>to make as a United States senator,