Mintz and Heim on Menendez's Bribery Case (Audio)

with Menendez, his longtime friend. Following his indictment in April of the senator has repeatedly maintained that he will be exonerated. I'm angry because prosecutors at the Justice Department don't know the difference between friendship and corruption and have chosen to twist my duties as a senator and my friendship into something that is improper. They are dead wrong, and I am confident that they will be proven. So the political stakes of the trial are high, with the potential loss

of a Senate seat for the Democrats. Our guests are Robert Mints, the head of the White Collar and Political Corruptions Unit, McCarter and English and a former federal prosecutor and Robert him of Meersenheim, a former assistant regional director of the SEC. Bob Mint. Since I see we have two Bobs today, we'll have to go by both names. Bob Mints tell us about the prosecution's case against Hernandez Shorten.

The prosecutions case UH includes a ten counts which are charges of conspiracy, bribery, thefted on his services which is essentially to pride and constituents of your honest services as a elected public official, violating the Travel Act, which is prohibiting traveling interstate or foreign travel in connection with committing

certain criminal acts, which in this case is bribery. What the heart of the case really is about this long running friendship between Center Mernandez and Dr Salomon Meligan, who was an ophthalmologist in Florida and who contributed considerably to Center Menendez's campaign, lavish gifts upon him, including expensive hotels, trips to the Dominican republic um and then linked to that, according to prosecutors, were various official acts which Centator Menendez

bestowed upon Dr Meligan in exchange for those gifts, and those had to do with a number of disputes that Dr Belgan was involved with one involving millions of dollars for Medicare claims. He was an optimologist and had a multimillion dollar Medicare claim with the federal government. He also had a five hundred million dollar contract to spee with

the Dominican Republic. And the smaller issue, but one that no doubt will be brought up at the trial because there's a salacious element to it, was the allegation that Center Menendez assisted with be the applications for Dr Meligan's girlfriends. Bob Jeim, there's really not a lot of dispute. It doesn't appear about the facts of the case in terms of whether Senator Menendez did a lot of these things for the doctor. What's his defense, Yes, that's a very

good point. There really is not a lot of factual disputes between the parties, and the senator's defense is essentially that he was acting as as a friend towards the doctor and that what he was doing in terms of the favors and other types of things did not rise to the level of what is called an official act.

We have a well known Supreme Court case that came out last year that involved the governor of Virginia Robert McDonald, and what he what that case had held was that it's really not enough to sustain a bribery conviction against the public official if they're merely offering courtesies or doing things such is setting up meetings or hosting events, that more is required. And Senator um de Menendez's arguments has always been that essentially the actions that he performed were

not official acts. They were just essentially courtesies and other things that don't rise to the level of an official act for purposes of the bribery statute. Bob Mints, is it even clear at this point what an official act is and what prosecutors have to prove now that has been moneyed up quite a bit by the decision that

Bob just mentioned the McDonald's case. Uh. In that case, the governor had set up meetings for a constituent as an example, and that was held by the Supreme Court to not be an official act for purposes of federal bribery charges. I think what happened there was the Supreme Court was worried that federal prosecutors were criminalizing routine political conduct where politicians are are in fact supposed to assist their constituents and set up meetings and help resolve issues.

And I think we're going to see the Menendez defense feed right into that narrative where they're going to say that the benefits that he provided to Dr Meligan were simply assisting him in dealing with federal agencies and that they were routine constituent services that were not tied to

any of the payments he received. They're also going to point out to the fact that the decisions ultimately on what to do for all of these issues, whether it was the large Medicare claim or the dispute with the Dominican Republic, were not decisions were ultimately made by Senator

Menendez himself. We're talking about the upcoming trial of Democratic Senator Robert Menendez of New Jersey on charges of corruption and bribery with Robert Mint's a partner McCarter and English, and Robert him a partner at Myers and Heim Bob Mints. A lot of it's been alleged, as we mentioned, is

factual and won't be disputed by the defense attorneys. But how does the government go about proving that there was a bribe that took place and that both men had an agreement as to what that would mean without having a cooperator or emails or something other than circumstantial evidence. That's a great question, because I think prosecutors were hoping to have that insider in the form of Dr Melligan.

Dr Melegan was recently prosecuted and convicted in the Southern District of Florida last April two charges unrelated to this, and is now facing a lengthy time in prison. You've yet to be sentenced on that. Prosecutors were no doubt hoping that that would convince him to cooperate in this investigation and testify against Center Menendez. That that has not happened.

So they're left with a circumstantial case, as you say, where they have to show that the gifts that were given were given with the intent to affect these official acts. And it's really a case of asking the jury to get inside the head of Senor Menendez and determine exactly what his intent was. And it really boils down to the question of where does friendship end and corruption begin.

Was this done out of friendship or was this really a relationship that was driven by campaign contributions and laps shifts in exchange for the official acts that Senator Menendez is charged with having done. On Dr Meligan's behalf well, bob him. Given the the issues we're talking about here on on proving what an official act is and the difference between your official course of action your unofficial course of action, how how good a chance does the government

have of actually convicting Senator Menendez here? Well, it's an interesting question because Judge William Wallas, who is overseeing the trial, has actually served his decision. Uh. Senator Menendez his attorneys filed a motion to dismiss the superseding indictment as a result of that Supreme Court decision, and the judge in Senor Menendez case has um has not ruled on that, and he said that he will rule on it after the government has a chance to present all its evidence

and when it comes time for the decision. There's certain acts that are very clearly counts to official acts, and these would be things like selling your vote, um, something of that nature, threatening to hold a committee hearing, um. But beyond that it becomes quite murky in terms of

what will satisfy the standard. One of the items the government has in its superseding indictment is a charge that Senator Menendez threatened to hold hearings um if he didn't get his way with respect to the pressure he was placing on various agencies with regards to doctor um Melgin.

And we'll have to see if the government's evidence bears out the charges that are laid out in the In the indictment, Bodman's a jury of six women and six men was chosen from a wide range of professions, from a Moody's employee who helps rate debt on foreign countries to a mail carrier. What would you be looking for as a prosecutor in this case and what would you

be looking for as a defense attorney in a juror? Well, I think the prosecutors are going to be looking for a law and order type juror, somebody who tends to see things as right or wrong, black and white. Um. You know, perhaps someone with a military background, uh, certainly people in law enforcement, but that general type of background.

The defense is going to be looking for people who they hope will look past some of these allegations, which will undoubtedly paint um Center Menendez in in somewhat of an unflattering light. The lavish gifts and hotel stays and

that sort of thing. Could look beyond that and look at him at his friendship with Dr Meligan, which undoubtedly was a friendship the last to twenty years, and and be receptive to the argument that this was simply a friendship that was unrelated to the official acts that Senor Menendez took on his behalf bob him. Are we dealing here with another situation where we might have a jury that thinks, you know, yeah, official acts whatever, this is

a he shouldn't have done this kind of stuff. He was really doing favors he's a senator, this is bribery, and Menendez actually has a better chance on appeal than a than a trial. I think that's a very fair statement. I think with your average juror when they hear about these kind of CD allegations, and there's a tendency to just say that the whole thing looks wrong, looks corrupt,

and vote to convict. What we're talking about here, um on this panel or some very nuanced legal issues in terms of what constitutes an official act and Supreme Court precedent, And very often those types of detailed legal issues are better addressed at the Court of Appeals or perhaps even with the district court judge once he considers the defendant's Robert menendez Is motion to dismiss the indictment. Well, Bob,

I'll ask that question in a different way. Would you rather be on as far as winning, would you rather be the prosecutor of the defense attorney in this case? It's very hard to say at this point because the government has not put in all of its evidence. I'd say that the indictment lays out a fairly strong case, especially on the one point where they allege that Senator Menendez threatened to hold committee hearings if he didn't get

his way. I think if the prosecutors can prove that point, that's going to be a very good one and a hard one to assert by the defense that that does not constitute an official action. Thank you both for being on bloom Burg Law. That's Robert Heim, a partner at Myers and Heim, and Robert Mints, a partner at McCarter and English. Just also want to mention in this case

that Menendez is very high profile. Defense attorney Abby Lowell successfully defended U S Senator John Edwards, who was accused of violating campaign finance laws, convincing jurors that donors put up money out of personal friendship, and there's a possibility that Lowell may be using that in this case as well. Coming up on Bloomberg Law, Europe's method rules haven't even kicked in yet, but the problems are apparent from every direction.

What the SEC is doing to prepare you're listening to Bloomberg Law, I'm June Grosso with Michael beston Greg Store. This is Bloomberg