Speaker 1: After prosecutors rested their case against Senator Robert Menendez yesterday,
Speaker 1: Menendez left the courtroom with his lawyers and daughter. He
Speaker 1: could be heard singing Amazing Grace in the courts elevator.
Speaker 1: That may be because the judge had suggested he might
Speaker 1: dismiss the twelve bribery charges against Menendez, the heart of
Speaker 1: the prosecution's case, citing a Supreme Court ruling that has
Speaker 1: derailed several high profile public corruption cases. The prosecution has
Speaker 1: presented more than thirty witnesses in six weeks of testimony
Speaker 1: to prove their accusations that the New Jersey Democrat took
Speaker 1: bribes from his co defendant, including campaign donations and luxury trips,
Speaker 1: in exchange for Menendez inter intervening on his behalf in
Speaker 1: various disputes with the US and Dominican governments. Joining us
Speaker 1: to answer the many questions this case has brought up
Speaker 1: are Robert Mints, head of the Criminal Investigations and White
Speaker 1: Color Practice at mcarter in English and a former federal
Speaker 1: prosecutor in New Jersey, and Robert Him, founding partner of
Speaker 1: Myers and Him, and a former assistant regional director of
Speaker 1: the SEC Bob Mints there were three hours of legal
Speaker 1: arguments in which the defense urged Judge William Wallas to
Speaker 1: dismiss the case before it goes to the jury on
Speaker 1: the basis of the Supreme Court's decision in the case
Speaker 1: of former Virginia Governor Bob McDonald. Will you explain the
Speaker 1: defense argument short June. The McDonald case is going to
Speaker 1: play a huge role in the ultimate outcome of this
Speaker 1: trial because what the McDonald case did was to narrow
Speaker 1: the scope of what the Supreme Court said constituted an
Speaker 1: official act that would form the basis of a bribery charge.
Speaker 1: So ess actually, what the court said is there has
Speaker 1: to be an official act performed by a public official
Speaker 1: in exchange for some kind of bribe. And what people
Speaker 1: thought going to this trial was going to be the
Speaker 1: key to this case was the government's ability to prove
Speaker 1: that the actions take and by Centator Menendez were in
Speaker 1: fact official acts. But instead the focus has now shifted
Speaker 1: to the question of whether the bribes meet the standard
Speaker 1: of McDonald because the government has been unable to prove
Speaker 1: that there was a direct quid pro quo relationship between
Speaker 1: the acts and the gifts, and instead the government has
Speaker 1: relied on this stream of benefit steery which Judge Walls,
Speaker 1: the judge presiding over this case, has called into question,
Speaker 1: Bob behind, Does that seem to you that the judge
Speaker 1: in the case uh seems to be looking at the
Speaker 1: case just the way Bob Mints described, where the issue
Speaker 1: is less whether these were official acts than the connection
Speaker 1: between uh, what Senator Menendez received and the things that
Speaker 1: he did. Does that seem to you to be a
Speaker 1: reasonable application of the McDonald McDonald's decision. Is that what
Speaker 1: the Supreme Court had in mind when it narrowed the
Speaker 1: scope of the corruption laws? Well, I think it certainly
Speaker 1: represents a very big rise both for the government and
Speaker 1: Senator Menendez. That Judge Walls, instead of focusing on whether
Speaker 1: Senator Menendez's actions were official acts under the McDonald decision,
Speaker 1: the Supreme Court Judge Wallace has now seemed to shift
Speaker 1: his analysis to a big concern about whether those activities
Speaker 1: were in exchange for the contributions and other benefits that
Speaker 1: Dr Mngel was providing to Senator Menendez. And this is
Speaker 1: a little bit of a departure from what what was
Speaker 1: anticipated because the McDonald decision from the Supreme Court had
Speaker 1: focused very heavily on what constitutes an official act, and
Speaker 1: that decision had said routine activities by legislators, such as
Speaker 1: setting up meetings and organizing events and even contacting government
Speaker 1: officials would not constitute official acts. And a lot of
Speaker 1: the parties um before Judge Walls, in particular Senor Menendez
Speaker 1: and Department Justice had fought over that issue, and now
Speaker 1: it seems like an entirely different issue has come up.
Speaker 1: The prosecutor said in the arguments yesterday, your honor would
Speaker 1: be the first court in the nation to invalidate the
Speaker 1: stream of benefits theory of bribery, and Judge Wall said,
Speaker 1: of course I'm the first one because I'm the only
Speaker 1: one being tried. Now, Bob, we have about thirty seconds here.
Speaker 1: What happens if he does this and then is there
Speaker 1: any hope for the prosecution? Then would they have to
Speaker 1: retry this if it went on appeal and when he
Speaker 1: was reversed. Yes, I mean if if, if as it seems,
Speaker 1: Judge Walls is going to reject this stream of benefits theory,
Speaker 1: then the government has virtually conceded that it's bribery charges
Speaker 1: would end up being dismissed. There'd be other charges that
Speaker 1: would still go to the jury, but ultimately the stream
Speaker 1: of benefits uh decision would be taken up on appeal
Speaker 1: and would be decided by a higher court. We've been
Speaker 1: talking about the possibility that Judge William Walls may dismiss
Speaker 1: the bribery charge against Senator Robert Menendez. We've been talking
Speaker 1: with Robert Mints of Partner McCarter and English and Robert Heim,
Speaker 1: partner at Myers and Him Bob Him. Judge Walls said
Speaker 1: during the hours of argument that the prosecutors appeared to
Speaker 1: have satisfied their new requirements for proving an official act,
Speaker 1: but then he questioned whether they had shown that these
Speaker 1: specific bribes were linked to specific actions the so called
Speaker 1: stream of benefits theory. Would it be unusual for a judge,
Speaker 1: after the prosecution has presented its entire case, to dismiss
Speaker 1: the main charges at this point instead of allowing it
Speaker 1: to go to the jury. Well, it would not be
Speaker 1: unusual if Judge Walls feels that the government simply has
Speaker 1: not met the legal standard that was set by the
Speaker 1: McDonald's decision in the Supreme Court. The essence of what
Speaker 1: Judge Walls has to do is decide whether there is
Speaker 1: legally sufficient grounds to allow the case to go to jury,
Speaker 1: and that's a decision the judge is uniquely satisfied to make,
Speaker 1: and it's something that he's going to have to decide
Speaker 1: before allowing the case to go to the jury. So
Speaker 1: that's why the judge had asked for the input of
Speaker 1: the attorneys, and it looks like he's also going to
Speaker 1: accept briefing from the attorneys over the next couple of
Speaker 1: days and make a decision as early as early next week.
Speaker 1: Bob Men's if the judge does the sort of thing
Speaker 1: we're talking about, if he says there's no stream of
Speaker 1: benefits theory, um, and I'm gonna throw out this case
Speaker 1: or at least these charges, what is left of our
Speaker 1: federal bribery laws. Are we we then to the point
Speaker 1: where you have to have a very explicit quid pro
Speaker 1: quo between a particular bribe and a particular official act.
Speaker 1: But that's a great question, and that's one of the
Speaker 1: reasons this case is being so closely watched because even
Speaker 1: though in the wake of McDonald there's been a number
Speaker 1: of convictions of public corruption cases that have been reversed,
Speaker 1: all of those other cases were reversed because they were
Speaker 1: trials that were conducted before McDonald came down, so the
Speaker 1: jury instructions that were given in those cases didn't comport
Speaker 1: with McDonald. This is the first high profile corruption case
Speaker 1: that is being done after McDonald, and so everybody's looking
Speaker 1: very closely at what those jury instructions are going to
Speaker 1: be here and and the question of whether the quid
Speaker 1: pro coil has to be that specific is still an
Speaker 1: open question and it really will have an impact on
Speaker 1: public corruption cases for years to come until the higher
Speaker 1: courts clarify this issue. Does it have to be very
Speaker 1: directly tied, as the defense argues, so that when a
Speaker 1: gift is given, at the very same time the gift
Speaker 1: is given, there has to be a specific official act
Speaker 1: that's tied to it. That's what the defense wants. The
Speaker 1: government is saying it doesn't have to be that specific,
Speaker 1: and that you can essentially put somebody on retainer where
Speaker 1: you give them the gift and know that at some
Speaker 1: point in the future when you need them, you will
Speaker 1: take the official act on their behalf. That's where the
Speaker 1: defense is, that's where the prosecution is, and that's part
Speaker 1: of this case that's undecided. But let's talk a little
Speaker 1: bit more about how big a blow this would be
Speaker 1: a loss in this case for the Justice Department, or
Speaker 1: at least a loss in the bribery aspect of it.
Speaker 1: How will the Justice Department decide about the cases that
Speaker 1: have been reversed whether to go forward, for example, you
Speaker 1: know New York State Assembly Speaker Sheldon Silver and Dean Scalos.
Speaker 1: How will they make that decision if they don't have
Speaker 1: the context of what they have to prove. Well, that's
Speaker 1: going to be a very factual based decision and a
Speaker 1: very detailed review of the evidence to really determine what
Speaker 1: the prosecutors can prove in terms of official acts, as
Speaker 1: McDonald court had held, things such as meetings and setting
Speaker 1: up events and other things that might be considered more
Speaker 1: routine UM legislative activities would not constitute official acts. So
Speaker 1: what the Apartment of Justice would have to do would
Speaker 1: be to review the evidence it has to see if
Speaker 1: that evidence is sufficient UM to to meet the new standard,
Speaker 1: to determine whether or not UM the conduct goes beyond
Speaker 1: those things and actually UM in comports with the new
Speaker 1: standard that McDonald has laid out. I think UM any
Speaker 1: decision in the menendeous case that limits the stream of
Speaker 1: benefits theory would would have a huge impact on the
Speaker 1: way the Department of Justice looks at these cases in
Speaker 1: the future, and it's going to certainly make it a
Speaker 1: much more limited set of cases that the Department will
Speaker 1: successfully be able to prosecute. Bob Min's let me sort
Speaker 1: of attack in the other direction and ask you, was
Speaker 1: it at all a surprise to you or would it
Speaker 1: be a surprise to you if the judge says that
Speaker 1: the government has cleared the official act hurdle, that's um
Speaker 1: as we're talking earlier, seemed to be the thing that
Speaker 1: might be the biggest obstacle for the government in this case.
Speaker 1: But from his comments the other day, the judge sounded
Speaker 1: like he may be satisfied that the government has has
Speaker 1: achieved that here. Yeah, I think this this turn of
Speaker 1: events has surprised everybody because the McDonald case really focused
Speaker 1: on whether the conduct constituted an official act, and I
Speaker 1: think frankly, the Prostitution and even the defense focused much
Speaker 1: of their case and mixture of their argument on that
Speaker 1: on that hurdle in satisfying McDonald, rather than the question
Speaker 1: of whether the gifts constituted bribes or not. And so
Speaker 1: it has really shifted the focus of what constitutes uh
Speaker 1: a political corruption case that is likely to stand constitutional muster.
Speaker 1: And regardless I think of what Judge Walls does in
Speaker 1: this case, We're going to see other cases where other
Speaker 1: judges are going to have to grapple with the import
Speaker 1: of McDonald and and I'm going to are going to
Speaker 1: have to address this question of whether a stream of
Speaker 1: benefits is enough to satisfy that prong of the briber statute.
Speaker 1: I want to thank you both for being on Bloomberg Law.
Speaker 1: That's Robert Mints. He is a partner at McCarter in
Speaker 1: English and Robert him founding partner of Myers and Heim.
Speaker 1: And the trial is in recess until Monday. The judge
Speaker 1: will announce then whether he's going to dismiss the bribery
Speaker 1: charges even if he had does. He has indicated that
Speaker 1: he will allow the trial to go forward as far
Speaker 1: as the false statements count. And those are the accounts
Speaker 1: that alleged that Robert Menendez did not report his various
Speaker 1: gifts on the on the on statements that he had
Speaker 1: to make as a United States senator,