Bribery Case Against Menendez Could be Dismissed (Audio)

derailed several high profile public corruption cases. The prosecution has presented more than thirty witnesses in six weeks of testimony to prove their accusations that the New Jersey Democrat took bribes from his co defendant, including campaign donations and luxury trips, in exchange for Menendez inter intervening on his behalf in

various disputes with the US and Dominican governments. Joining us to answer the many questions this case has brought up are Robert Mints, head of the Criminal Investigations and White Color Practice at mcarter in English and a former federal prosecutor in New Jersey, and Robert Him, founding partner of Myers and Him, and a former assistant regional director of the SEC Bob Mints there were three hours of legal arguments in which the defense urged Judge William Wallas to

dismiss the case before it goes to the jury on the basis of the Supreme Court's decision in the case of former Virginia Governor Bob McDonald. Will you explain the defense argument short June. The McDonald case is going to play a huge role in the ultimate outcome of this trial because what the McDonald case did was to narrow the scope of what the Supreme Court said constituted an official act that would form the basis of a bribery charge.

So ess actually, what the court said is there has to be an official act performed by a public official in exchange for some kind of bribe. And what people thought going to this trial was going to be the key to this case was the government's ability to prove that the actions take and by Centator Menendez were in

fact official acts. But instead the focus has now shifted to the question of whether the bribes meet the standard of McDonald because the government has been unable to prove that there was a direct quid pro quo relationship between the acts and the gifts, and instead the government has relied on this stream of benefit steery which Judge Walls, the judge presiding over this case, has called into question, Bob behind, Does that seem to you that the judge in the case uh seems to be looking at the

case just the way Bob Mints described, where the issue is less whether these were official acts than the connection between uh, what Senator Menendez received and the things that he did. Does that seem to you to be a reasonable application of the McDonald McDonald's decision. Is that what the Supreme Court had in mind when it narrowed the scope of the corruption laws? Well, I think it certainly represents a very big rise both for the government and

Senator Menendez. That Judge Walls, instead of focusing on whether Senator Menendez's actions were official acts under the McDonald decision, the Supreme Court Judge Wallace has now seemed to shift his analysis to a big concern about whether those activities were in exchange for the contributions and other benefits that

Dr Mngel was providing to Senator Menendez. And this is a little bit of a departure from what what was anticipated because the McDonald decision from the Supreme Court had focused very heavily on what constitutes an official act, and that decision had said routine activities by legislators, such as setting up meetings and organizing events and even contacting government

officials would not constitute official acts. And a lot of the parties um before Judge Walls, in particular Senor Menendez and Department Justice had fought over that issue, and now it seems like an entirely different issue has come up. The prosecutor said in the arguments yesterday, your honor would be the first court in the nation to invalidate the stream of benefits theory of bribery, and Judge Wall said, of course I'm the first one because I'm the only

one being tried. Now, Bob, we have about thirty seconds here. What happens if he does this and then is there any hope for the prosecution? Then would they have to retry this if it went on appeal and when he was reversed. Yes, I mean if if, if as it seems, Judge Walls is going to reject this stream of benefits theory, then the government has virtually conceded that it's bribery charges

would end up being dismissed. There'd be other charges that would still go to the jury, but ultimately the stream of benefits uh decision would be taken up on appeal and would be decided by a higher court. We've been talking about the possibility that Judge William Walls may dismiss the bribery charge against Senator Robert Menendez. We've been talking with Robert Mints of Partner McCarter and English and Robert Heim,

partner at Myers and Him Bob Him. Judge Walls said during the hours of argument that the prosecutors appeared to have satisfied their new requirements for proving an official act, but then he questioned whether they had shown that these specific bribes were linked to specific actions the so called stream of benefits theory. Would it be unusual for a judge, after the prosecution has presented its entire case, to dismiss the main charges at this point instead of allowing it

to go to the jury. Well, it would not be unusual if Judge Walls feels that the government simply has not met the legal standard that was set by the McDonald's decision in the Supreme Court. The essence of what Judge Walls has to do is decide whether there is legally sufficient grounds to allow the case to go to jury, and that's a decision the judge is uniquely satisfied to make, and it's something that he's going to have to decide

before allowing the case to go to the jury. So that's why the judge had asked for the input of the attorneys, and it looks like he's also going to accept briefing from the attorneys over the next couple of days and make a decision as early as early next week. Bob Men's if the judge does the sort of thing we're talking about, if he says there's no stream of benefits theory, um, and I'm gonna throw out this case or at least these charges, what is left of our

federal bribery laws. Are we we then to the point where you have to have a very explicit quid pro quo between a particular bribe and a particular official act.

But that's a great question, and that's one of the reasons this case is being so closely watched because even though in the wake of McDonald there's been a number of convictions of public corruption cases that have been reversed, all of those other cases were reversed because they were trials that were conducted before McDonald came down, so the jury instructions that were given in those cases didn't comport

with McDonald. This is the first high profile corruption case that is being done after McDonald, and so everybody's looking very closely at what those jury instructions are going to be here and and the question of whether the quid pro coil has to be that specific is still an open question and it really will have an impact on public corruption cases for years to come until the higher

courts clarify this issue. Does it have to be very directly tied, as the defense argues, so that when a gift is given, at the very same time the gift is given, there has to be a specific official act that's tied to it. That's what the defense wants. The government is saying it doesn't have to be that specific, and that you can essentially put somebody on retainer where you give them the gift and know that at some point in the future when you need them, you will

take the official act on their behalf. That's where the defense is, that's where the prosecution is, and that's part of this case that's undecided. But let's talk a little bit more about how big a blow this would be a loss in this case for the Justice Department, or at least a loss in the bribery aspect of it. How will the Justice Department decide about the cases that have been reversed whether to go forward, for example, you know New York State Assembly Speaker Sheldon Silver and Dean Scalos.

How will they make that decision if they don't have the context of what they have to prove. Well, that's going to be a very factual based decision and a very detailed review of the evidence to really determine what the prosecutors can prove in terms of official acts, as McDonald court had held, things such as meetings and setting up events and other things that might be considered more

routine UM legislative activities would not constitute official acts. So what the Apartment of Justice would have to do would be to review the evidence it has to see if that evidence is sufficient UM to to meet the new standard, to determine whether or not UM the conduct goes beyond those things and actually UM in comports with the new

standard that McDonald has laid out. I think UM any decision in the menendeous case that limits the stream of benefits theory would would have a huge impact on the way the Department of Justice looks at these cases in the future, and it's going to certainly make it a much more limited set of cases that the Department will

successfully be able to prosecute. Bob Min's let me sort of attack in the other direction and ask you, was it at all a surprise to you or would it be a surprise to you if the judge says that the government has cleared the official act hurdle, that's um as we're talking earlier, seemed to be the thing that might be the biggest obstacle for the government in this case. But from his comments the other day, the judge sounded like he may be satisfied that the government has has

achieved that here. Yeah, I think this this turn of events has surprised everybody because the McDonald case really focused on whether the conduct constituted an official act, and I think frankly, the Prostitution and even the defense focused much of their case and mixture of their argument on that on that hurdle in satisfying McDonald, rather than the question

of whether the gifts constituted bribes or not. And so it has really shifted the focus of what constitutes uh a political corruption case that is likely to stand constitutional muster.

And regardless I think of what Judge Walls does in this case, We're going to see other cases where other judges are going to have to grapple with the import of McDonald and and I'm going to are going to have to address this question of whether a stream of benefits is enough to satisfy that prong of the briber statute. I want to thank you both for being on Bloomberg Law. That's Robert Mints. He is a partner at McCarter in English and Robert him founding partner of Myers and Heim.

And the trial is in recess until Monday. The judge will announce then whether he's going to dismiss the bribery charges even if he had does. He has indicated that he will allow the trial to go forward as far as the false statements count. And those are the accounts that alleged that Robert Menendez did not report his various gifts on the on the on statements that he had to make as a United States senator,