This is Bloomberg Law with June Brusso from Bloomberg Radio.
So it is because of missus Wilson and so many teachers like her, that I stand before you as Vice President of the United States of America and that I am running to become president of the United States of America.
It all happened rather quickly. After President Joe Biden ended his reelection bid on Sunday. Vice President Kamala Harris sealed her status as the presumptive Democratic presidential nominee. By Monday night, after getting more than enough pledged delegates to cinch the nomination. The Vice president took over Biden's campaign, which was renamed Harris for President, and his campaign war chest of about ninety six million dollars. Just as quickly, Republicans started a
multi pronged effort to steymy Harris. On Tuesday, Donald Trump's presidential campaign filed a complaint with the Federal Election Commission, claiming that the transfer of Biden's money to Harris violates the law, and some Republicans, like House Speaker Mike Johnson, began raising the specter of lawsuits challenging Harris's place on the top of the ticket.
We have fifty different systems in each of the states when it comes to presidential elections and choosing electors and all the rest. And in some of the states there are impediments to just switching someone out like that. Remember that this claims to be the Party of Democracy, small D democracy right. Fourteen million people went through the process and chose this nominee, Joe Biden. Now a handful of people have gotten together and decided he's no longer suitable.
That's not how this system works.
Or is it just that Johnson doesn't understand how the system works? Joining me is elections law expert Richard Brefald, a professor at Columbia Law School. Rich start where it always starts, the money. Does Harris have the right to take over the money raised by Biden's reelection campaign?
So the money is sort of in three parts, And the only real issue was the money technically that went to the Biden Harris campaign. So the money that goes to the Democratic Party, of course she can use. And I think they also had a pack going, a superpack going, and of that, of course they can use. The issue was the money that went to Biden Harris specifically, and there I think it's a smaller amount, maybe like ninety million,
but I'm not sure about that. The assumption of all the campaigns finance people I've spoken to is yes, as long as Harris continues to be on the ticket, it's money that she can use. The issue would have been more if the Democrats nominated someone else, then I think the Biden Harris committee would have had to transfer the money to the Democratic Party, and the Democratic Party would have the money. But as long as she's the nominee, she is part of Biden Harris, which I think now
has already been renamed Harris. So the assumption of just about every campaign finance lawyer I know is that, yes, she can use it. I think the overwhelming assumption is that the money went to her also it was going to Biden and Harris. Harris is still running, so I think that the vast majority of Camping c and An's lawyers and scholars believe that it's money she can use.
Trump's presidential campaign filed a complaint with the Federal Election Commission. It seems like a long shot, though for a couple of reasons. Harris has sixty days to respond, and the Federal Election Commission is known for moving at a glacial pace, so at the worst it would just be a question of paying fines later.
Not only it takes a long to move, but you would need to get four votes, and there are three Democrats who sit on the Commission. There's a six member commission of three Democrats and the Republicans, and on most major things they tend to vote on party mind, So it just seems right. There's both the time that would take and likely vote, and I think given the rules of the election law, I think it will be very hard for Republicans to side step the Commission and go
directly to court. Now somebody might try that, but I do think it's kind of a lost cause. Given the court system today. You never know one hundred percent, But I think, as I said, the overwhelming belief is that the money she could use and would be very unlikely the Federal Election Commission would certainly during the course of the campaign, but at any time come and say it wasn't improper use.
Speaker Mike Johnson says he expects they'll be litigation, saying there are fifty different systems and that in some states there are impediments to swapping candidates. Could there be losses on the basis of the switch.
It seems like a totally ridiculous argument. The party doesn't have a candidate. The party doesn't have a candidate until they make a nomination. Biden was never nominated. If Democratic convention has not met, even the so called virtual role call we're talking about hasn't happened, the Democratic Party gets to decide who the Democratic Party's nominee is, and they haven't made a choice yet. I don't think there'd be an issue even that's what was answered the nomination, because
they still get to write their own rules. Just to make it clear, Biden was never the nominee. He was the presumptive nominee. He was never the nominee, and so there's no challenge to make. There's no substitution, No ballots have been printed, and so it's it's totally blowing smoke.
So then what about the June twenty first memo from the Heritage Foundation, the conservative think tank, where it says it views swing states Georgia, Nevada, and Wisconsin as likely arenas for pre election legal challenges because they have specific procedures for withdrawal of a presidential nominee.
The only way there would be anything is that Biden had actually been nominated. But Biden wasn't nominated. It doesn't matter that Biden won primary there because many times a candidate who's won primary insup states who's is the nomination. So the fact that Harris didn't win the primary in the NY of the states is irrelevant. Many candidate who are an ultimate nominees lost some primaries, they still got to be on the ballots of the states where they
lost the primary. So I think they might have some argument that he'd actually been nominated and she was being put in to replace him, but he was never nominated.
Which do you see any other legal complications of her candidacy.
No, I don't. I don't. I mean, I think again, there's a potential potential challenge on the money when it goes from Biden Harris to Harris somebody else. But I do think there it's still Harris. I think that challenge is pretty weak. There's absolutely no challenge on her being on the ballot because you say, one more time, Biden was never the nominee, so there's no issue about changing nominees.
He hadn't been nominated yet and you know, it was not likely that he would have been defeated at the convention. But there had been contested conventions. I mean, maybe the less truly congested one was in nineteen seventy six when Ronald Reagan was trying to unseat Gerald Ford. He came close, and if he had done that, he would have been the nominee. And the fact that forward with the incumbent president and had one a bunch of states and primaries would have been irrelevant.
So do you have any idea what Mike Johnson is talking about? Then?
I have no idea what he's talking about. I mean, I mean, some of the noise he's making is that it's undemocratic, small d democratic. But the parties get to write their own rules about who the nominees are. Supreme Court has said that, going back to contested conventions in the nineteen seventies, This is the parties are private organizations. They get to write their own rules and to choose their own nominees. And it looks like they're going to
choose to nominate Harris. If they do nominate Harris, she's the nominee. She's the one who gets on the ballot. And if for some reason, they choose to nominate somebody else because something else happened in the next three weeks, that person would be the nominee.
And what do you think about Johnson's argument that this violates democratic principles that voters chose Biden in the primaries and now they're getting Harris.
There's a reason it's unprecedented. You don't just, you know, steamroll the rules in the process because you decide that your candidate is no longer suitable.
I mean, I think, for one thing, Biden was always running with Harris as his teammate, so to some extent, they're still getting one of their choices. But I think in the end, remember, the winner of the primary in any one state is not guaranteed or in many states. I mean, going back to nineteen sixty eight, Hubert Humphrey didn't run any primaries and he was the nominee. Eugene McCarthy won more primaries than Hubert Humphrey, but Hubert Humphrey was the nominee.
Everyone agrees on one thing, this is unprecedented. But is there anything in presidential history that would be analogous.
It's hard to make an analogy where there was somebody who was so clearly the presumptive nominee and then who pulls out at the last minute. There have been a couple of elections where a candidate dies that the person's already been nominated, and then there's a scrambled to place
that candidate. That has happened, But I can't recall anything like this where there was somebody who had won all the primaries, was the presumptive nominee and then decides no, I'm not going to run, and the party quickly rallies around another person. But again, this is the person who was his number two. It's not a challenger who is going to be chosen. So it is unprecedented, but it's utterly, entirely consistent with the rules. Maybe just leave it at that.
Is that again, just to make it clear, he was never the nominee, So they're not replacing a nominee. They're just picking a nominee. And when people were donating money, they were donating money to Biden Harris. It looks like they're.
Still going to get Harris, which delegates are planning a virtual roll call vote within the next two weeks to confirm Harris as their nominee. For president. Just suppose that doesn't happen for some reason.
The way delegates work in the Democratic Party, even if Biden were running, the nature of the pledge is it's like an honor pledge or a good faith pledge. So even the pledge, delegates actually could have voted for someone else. So the fact that they've kind of announced a commitment to her, they're not legally pledged to her, so people could change their minds. I mean, I'm not saying that's going to happen, but I think the real issue is I think I saw Mary and Williamson I might have declared.
I think under the rules of the Democratic Party, anyone who wants to be nominated would need to support of three hundred delegates, with no more than fifty from one state. And at this point it doesn't seem like there'll be any other candidate, so I think in that sense, she has it wrapped up. None of the other prominent figures in Democratic parties have indicated any interest in running. I think at this point they've all endorsed her, so in
some sense it's technically open. But she's going to be nominated, presumably, if not by acclamation then by some overwhelming quote, and.
I guess the only mystery left is who she'll choose as vice president. Thanks so much, rich for clearing up the confusion and ending the speculation. That's Professor Richard Rfault of Columbia Law School coming up next on the Bloomberg Law Show. You may remember in late May when the Justice Department filed a major antitrust lawsuit to break up Live Nation and Ticketmaster. Well, we've just seen Live Nation's
first response, and it's pretty underwhelming. I'm June Grosso and you're listening to Bloomberg.
Ticketmaster can impose a seemingly endless list of fees on fans. Those include ticketing fees, service fees, convenience fees, platinum fees, price master fees, per order fees, handling fees, and payment processing fees.
Anyone who's bought concert tickets on Ticketmaster can probably relate to Attorney General Merrick Garland's description of the seemingly non ending fees to purchase. Ticketmaster, the country's largest ticketing company, and its parent company, Live Nation, the country's largest concert promoter, have a long history of clashes with major artists, including the fiasco in twenty twenty two. When the website crashed during a pre sale for Taylor Swift Stadium tour, led
to congressional hearings. Garland said it was time for fans and artists to stop paying the price for the monopoly, and so the Justice Department and more than two dozen states filed a sweeping anti trusts lawsuit in May to force the breakup of Live Nation and Ticketmaster.
Live Nation suffocates its competition using a variety of tactics, from acquisitions of smaller regional promoters and venues to threats and retaliation to agreements with rivals designed to neutralize them. This has included acquiring or co opting key independent promoters.
Live Nation denies its a monopoly, and its CFO, Joe Burke, told told the Senate Judiciary Committee last year that it was not responsible for high ticket prices.
Pricing and distribution strategies are determined by the artists and their teams. Service fees, even if they're called ticketing fees, are retained mainly by the venues in their portion of the service fee. The Ticketmaster retains has been falling steadily over time.
But Live Nation's first official response to the lawsuit, in a letter to the trial judge is really underwhelming according to anti trust experts, and one of those experts joins me. Now, Harry First, a professor at NYU Law School. Harry start by telling us about the Justice Department's anti trust case.
Okay, so this is in some ways basically a suit to correct a bad mistake the Justice Department made in twenty ten. So it's taken them a while, but eventually anti trust enforcers are trying to get it right. So what happened was in two thousand and nine, Ticketmaster and Live Nation decided to merge, and the Justice Department looked at it. Ticketmaster, of course, sells ticketing services to major venues around the country what's now called primary ticketing services.
The secondary markets weren't so developed then reselling and Live Nation was the biggest promoter at the time and it sort of entered the ticketing market. But basically this was what's referred to as a vertical merger, not really competitors or not much competitors yet. But at the time the Justice Department understood what was going on. So Live Nation, which was a big promoter and booker of venues, wanted to put its shows into venues that would use Ticketmaster ticketing.
So the venues knew that if they wanted to get you a really good show, the best way to do it was to use Ticketmaster because they really needed Live Nations talents. So Live Nation, as a promoter of major tours, thought that this tie up would sort of help both businesses, as did Ticketmaster. It would give Ticketmaster and edge over competitors in the ticketing business, and it would increase Live Nations revenues because now they owned a ticket in company.
So control the talent, control entry or choice of the venues, and you control ticketing. So at the time, the Justice Department knew this, there was testimony about this, and also Ticketmaster had, you know, in major venues, a major share of the market, maybe seventy or so percent, so they had a dominant or monopoly position at the time. But instead of saying you can't merge, they said, hey, go
ahead and merge. We've got some conditions for you. First, help a company is trying to get into the ticketing business get into it through some software. Okay, that was one idea. The second thing is we'll tell Live Nations that they can't condition their talents, you know, with venues on using Ticketmaster. They can't make that a condition and they can't retaliate against the venue if that venue subsequently decides to use a ticketing company. So no conditioning, no retaliation. Fine.
We think this is wonderful. Parties merge the new entrant. Turns out never does well, and almost from the beginning they violate the decree, And in fact, they don't have to actually violate it because every promoter, every venue owner knows what the deal is. You know, give Live Nation the ticketing revenue, more likely you're going to get the good tours into your venue, and there's a lot of competition for that. So this decree never worked. It didn't
work because the parties violated. There were later proceedings because it looked like they were violating it, and then kame Taylor Swift.
And then the hearings in the Senate. That was the push. Wasn't it for the Justice Department to actually sue?
That finally pushed the Justice Department. This has been a pretty aggressive Justice Department on any trust to say, you know, just really, it's almost fifteen years. It just didn't work and it's time to do something about it. So the lawsuit we see now is the Justice Department saying Ticketmaster has a monopoly position in primary ticketing services, and it's solidified by being owned by Live Nation. We've got to stop it, declare them monopoly, and then break them up.
So they're at the motion to dismiss stage, and the trial judge had asked Live Nation to identify issues it might move to dismiss. Live Nation offered its first official response to the suit in a letter to the judge, and its response was quite narrow, really just challenging one of the government's claims, the tying claim. What did you think of Live Nation's response?
Not much? I mean, okay, it involves a little more factual analysis of who's force to do was basically a compelled arrangement. So there is in the Justice Department's complaint not just a complaint about monopolization of the ticketing markets and large venues. There's a complaint about a tying arrangement that involves talent itself. So a tying arrangement is basically,
you have two products. A seller says, if you want my A product, guess what you've got to take B. So you know, if you want my car, you got to take my tires. There's always a question of what two products are, but that's the basic of a tying arrangement, and the Justice Department alleges that Talent knows there's this talent promoting services market that Live Nation also is involved in. So if you want those promotion services, you've got to be sure to be booked into the proper venues that,
of course are using Ticketmaster. This is part of the complaint, and it's a part that the defendant, Ticketmaster A Love of Nation, says it might move to dismiss, but frankly, it seems like a rather minor part of the complaint. The big part is their monopolization claim and the big relief is to break up the company. So time can be a problem, and it's historically been a problem, but it's not the central problem of this piece of litigation.
So they haven't made their motion yet and it's a little I don't know what they're doing with this particular part. They are trying to move the case to a different court, so maybe they don't want to reveal their entire legal strategy at the moment, I really don't know, but they're trying to change where the case is going to be tried from New York to DC.
Yeah, and why do they want to change venues? Do they think they'll have more luck in DC than in New York?
I knew you were going to ask me that.
I guess I'm too predictable.
And I'm not really sure why they want to do that. Flow things down. Maybe they're dissatisfied with this particular judge. They know who they've got here. Maybe the docket is slower in DC, They've got a lot of cases there. Part of it may be related to their effort to dismiss the state claims. So the states are asking for damages,
not clear which states, but under their state law. And there's now precedent in the DC Circuit which takes a somewhat dim view of these kinds of state claims in any trust cases, a case that involved the Facebook litigation in the District of Columbia. So maybe they feel they have a better chance of getting those state claims dismiss there. And the state claims also come with a request for
a jury trial. So hard for me to know exactly strategically, you know what all is going on, And I mean, obviously people don't ask for change of venue unless they think they'll be better off someplace else. But I'm not quite sure why they.
Think that, And so in this letter to the judge they try to knock out the state claims in different ways. Are they trying to avoid a jury trial in a case like this where I mean, who hasn't been aggrieved by ticket Master?
You mean you think the jury might not be too sympathetic.
That's what I'm thinking, but everyone hates.
Yeah, that's a good instinct. I think on this they really would not want to have to present this case to a jury. And the claim for damages seems it's a little vague, which the defendant does say, and I think correctly, you know, not that he can't be made less vague. But if there's not a claim for damages, then the case gets tried before a judge, and you just hope, I guess that the judges never bought a ticket. Now, if it doesn't get moved them, they're going to make
the same claims in New York. And you know they've already cited the DC circuit case. But you know it's stronger if it's in a circuit in which you're litigating, not in a sister circuit.
As you mentioned, DOJ wants a breakup of the company, which is a drastic remedy. But I've heard it said that if it applies anywhere, it should be here.
Yeah, I mean, in many ways this is I mean, I don't know for sure because they don't know the inner workings of how integrated the firms are. But this should be a case where it's relatively easy, relatively being the keyword to break the company up because they do operate as at least public Facing has two separate companies. They do two separate things. They're in separate markets that are linked, but they used to operate separately before and
presumably could operate separately again. So I think you're right. This is a case where, you know, restructuring of the company sounds like it is doable. The question is whether that's going to change Ticketmaster's monopoly position or not, And that's sort of the next step. So you could break them up, but you know, how much will that increase competition in itself?
Can live Nation use the fact that DOJ allowed the merger to proceed in the first place, and then agreed to extend the initial consent decree as recently as twenty nineteen, even after it found that live Nation repeatedly violated the decree.
They will make that argument. Is it a good legal argument? I really don't think so. There is not what's called in a stoppel against the government. The government is able to and free to change its policy as it sees how it works. There are older cases in which the government accepted this particular remedy. The remedy didn't work out. The district court judge in fact in that older case said, gee, I can't change this decree. You entered it, and the
Supreme Court said, no, you can. It didn't work. Ten years you had a chance for this to work and it didn't bring competition. Ten years is long enough. So I don't think in the end that's really a good argument. You know, things change and decrees don't work out, and they don't bind successive governments forever.
Always great to get your insights, Harry, Thanks so much. That's Professor Harry First of NYU Law School. Coming up next. Defense attorneys beware of those plea bargaining sessions. I'm June Grass. When you're listening to Bloomberg, Plea bargains account for almost ninety eight percent of federal convictions. And we've all seen how it works, sort of in movies and TV shows like Presumed Innocent, where the defense attorney is trying to get his client a plea.
Deal, blood and guts everywhere at her home, not so much as a microscopic drop in this car he cleaned it or on his clothing cleaned it also weapons disposed that it. Rusty cannot risk spending the rest of his natural life in prison, and you cannot chance an acquittal and the obliteration of all of your political capital. We'll cop to the obstruction three years.
Ray, you seriously think we'll plead it out on an obstruction surn But what.
If prosecutors use information they get from defense lawyers in those sessions against the defendant. That's basically what happened to Senator Bob Menandez in his corruption trial. While the gold bars, the half million in cash, and the Mercedes Benz got most of the attention, federal prosecutors made an unusual and aggressive move in charging Menendez with obstruction based on the presentation made by his former lawyer in a meeting with
prosecutors before the indictment. Joining me is former federal prosecutor. Ariel Newman, a partner at Bird Marilla Ariel how common is it for defense attorneys to meet with prosecutors to try to talk them out of bringing charges.
So in this case, we're talking about pre indictment, meaning before the defendant is charged, And these meetings are very, very common, especially in the white collar context where we're talking about fraud crimes of some sort. We are going in and making the case to the prosecutors about why
they shouldn't pursue a case against our client. And it may be legal arguments, it may be factual arguments, but we are trying to convince them that they don't have a case, or for whatever reason, they shouldn't pursue a case that they think they have.
Are these meetings supposed to be confidential or can prosecutors use the information given to them at trial?
Usually there is an agreement or there's a request for an agreement by the defense lawyer that these are protected as settlement conversations. There's a sederal rule of evidence that says settlement communications can't be admitted for almost and that's an important almost almost any purpose at trial, and so generally the expectation is that these are going to be largely confidential. And then the caveat to that is sometimes there is an agent that's an FBI agent, who is taking
notes during the meeting. If that's happening, you tend to know that it may not be as confidential as you hope. Also, I mean, I've had it where they write a report and then they produce it in discovery. If the government goes ahead and charges your clients anyway, and there's other people who are charged in the case along with your client, and suddenly they are seeing a report about what you said during that meeting where you were trying to convince the government not to charge your client.
I mean, was that in a case where you thought what you were saying was not to be used.
We thought it was a confidential settlement meeting. They never tried to introduce it at trial. But there isn't really anything prohibiting them from doing what they did unless you
have an agreement explicitly that they won't. And I have found more and more as I have asked for those agreements that prosecutors and especially prosecutors from what we call main Justice DOJ and DC as opposed to the local US attorney's office are less and less willing to have any sort of agreement about what they're going to do
with the information you provide. But what happened in the Menendez case, Honestly, I've never heard of that before, and everybody I've talked to has never heard of it before, where prosecutors in that case charged the defendant with obstruction because they claim the lawyers provided false factual information during those meetings, which they say the lawyers got from the defendant. You know, we are always talking about facts during the
meeting legal arguments, but we're also making factual arguments. And I've never heard of and like I say, nobody else that I know I has ever heard of the government charging obstruction based on what you say during those meetings.
And we should point out that the exception to the federal rule that you referred to before is that statements made during these negotiations can be used to prove obstruction, as in the Menendez case. So Abby Lowell, a high profile criminal defense attorney, represented Menendez in these pre indictment negotiations with the prosecutors in the Southern District, and he made a PowerPoint presentation. Is that unusual?
Not at all, very common. That helps outline the discussion, helps frame what you're going to be talking about, and the hammer home the point that you want the government to focus on. So very very common to have a presentation, and I think important in any of these presentations that that's all what it is, maybe an outline or maybe just a couple of bullet points on a screen, maybe a couple pictures or citations to cases. None of us are putting the entire context of what we're going to
say up on the screen. In fact, my practices edit it down to the fewest words possible.
The judge allowed the government to introduce a trial pages from that PowerPoint presentation. I mean, what about attorney client privilege? What about attorney work product? Where were those concepts in this?
So attorney client privilege once you share with the government, let's say what your client said, then it's free game. Right you've sort of waived at least as to those statements. Arguably the privilege depends how you say it, right, my client told me X that's pretty much a waiver. But the attorney work product is a different question. And generally my view is that we shouldn't be giving the government
our work product defense lawyers. We shouldn't be giving them our powerpoints because they can, as it appears they did here take it out of context right here that I think they put in four pages from what was obviously a longer PowerPoint into evidence and the defense, if I understand it, was really stymied in their effort to get
in any of the context around them. And it's that context where the caveats are given, where the lawyers are making sure that it's understood that this may not be exactly what the client, that maybe this is what our investigation has shown or something else. But without that context, it becomes very difficult to get the full picture of what was actually said during that meeting.
In light of this, you have written for Bloomberg Law some advice for defense lawyers in these situations. First, whether to even have the meeting? I mean, how often our defense lawyers successful in getting prosecutors not to charge their client? Is it worth even having one of these meetings?
I've done it, and you know people who have had success. It depends where the government is in the process and how could your facts and your arguments are It is certainly in many cases worth making the presentation. First, of all, often in advance of that, you have discussions with the government where you can learn more about their case and gives you a chance to find out sometimes where the
holes are in your arguments as well. Right if I come in and I make some argument, the government says, oh, that's all well and good, but what about XYZ And for whatever reason I didn't know about X y Z. Well, now we're more informed going into the next decisions about what we're going to do. The big downside to making these presentations is that you're showing your cards to some extent. You're going in and you're making your pitch to the government.
You're arguing your facts, you're arguing your evidence, and you know, the sort of conventional wisdom is that that allows the government to shore up their case as well. They find out where their potential holes are and where the weaknesses in their case are. And so it's certainly a balancing decision in every situation of whether you do this meeting,
but in many cases it's worthwhile. And in many cases the client is really pushing because they're facing the prospect of federal felony charges and this may be the best shot they have to avoid them. Or at least they think that. And that's one of the things I talk about is how to resist that pressure. Whether to resist that pressure. It's not always so easy when the guy paying the bills is telling you do something to stop this. Please.
Are there any magic words that you should say at the beginning or you should have put in writing so that you avoid a menenda situation?
Well, there are no magic words, and so you just have to be careful and clear as you approach this. One of the main things is I do think it's worth getting an agreement that these are settlement communications and that at least gives some protection to how anything that comes out of the meeting might be used in the future.
And a big one that I think we see here is where at all possible not to source the information that's in your presentation to your client, meaning not to say my client told me X or my client says why about this situation? And once you say that, you are then really putting the client on the line and their credibility on the line.
So, in talking to other defense lawyers, do you think that they're more aware now or more afraid of what might happen in these meetings?
I think this prosecution for people who are aware of it, sent a bit of a shockwave through the defense bar. I haven't had a reaction like I had to this article from the defense bar. People pointing out to me that they are changing their practices, people responding that they've never heard of this, and they're going to have to
think about it going forward. You know, we're going to have to see whether this was an outlier, very aggressive prosecution, or whether this is something that is going to be a tool, a new tool in the government's told belt, and we're all going to have to be cognizant of it. So I do think it's going to change or at least make us more cautious as we go into these meetings.
Menanda says he's going to appeal his conviction all the way to the Supreme Court if necessary. And we've seen the Supreme Court in the last decade or so narrowing the definition of corruption, leading to a number of convictions of public figures being overturned. Do you think that'll be one of his poor So, I'm.
Sure it's something he'll bring up. I've had bribery cases, public corruption cases, and this is sort of where the rub is right now as the Supreme Course is going through and as you say, narrowing the definition of what we call an official act. I would be shocked if they don't focus on that. They were focused on it in the pre trial and then again during the trial, and it seems to me that they've got some good arguments and they've got some that may be more of
a challenge. It's really about whether Menendez was using his official position on any decision or action on any question matter, cause, preceding, or controversy which may be pending before him in his official capacity. So, for instance, he as was alleged interfered with a state prosecution by calling up a state prosecutor and saying, hey, maybe take another look at this now, that's not really something that's pending before him, And maybe
a harder argument that that's an official act. He doesn't really have an official role there. He's sort of using
his influence and position. Whereas maybe as he's alleged to have interfered with the nomination of the US Attorney from New Jersey by essentially corruptly making a recommendation to the president of who to nominate, well, that may be closer to the line because that is the traditional function of the senator from a particular state, and that is potentially something that was pending before him in his official capacity.
So it seems to me that they may have some luck, but I'd be surprised if they can fully get everything reversed. And that's just one part of the case. Obviously, there's other pieces that don't rely on that official Act element. Those are going to be harder for them to succeed on.
From what I can see, do you think his conviction for being an agent of Egypt will be easier for the defense to attack?
I think what you have to look at is the full picture, right, because the argument is essentially that legislators, and especially a senior senator like him, who's doing the foreign affairs work that he's doing, are going to have contact with foreign officials and are going to take positions that may be to the benefit of a particular country, in this case Egypt, And so that's just sort of part and parcel of what they do. And as a member of Congress, the challenge in a case like this is, well,
what about the rest of the picture? Right? And here it's the cash and the gold bars and the deleted messages and so on and so forth that the jury obviously felt that takes it out of the realm of what you're doing in your official capacity and puts it more into the realm of something that is corrupt. And so that's what's going to be the bigger challenge I think on appeal is how do you question the jury's verdict in light of the full scope of the evidence.
And that's always what makes these cases difficult.
Menandez as lawyers say they're going to appeal aggressively, so we'll see what arguments they come up with. Thanks so much, Ariel. That's Ariel Newman of Bird Marilla. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, Slash Law. I'm June Grosso and this is Bloomberg