Menendez’s defense might use 3 strategies
NJ senator faces bribery and corruption charges
For the second time in his career as a United States senator, Bob Menendez will face trial over bribery and corruption charges. With jury selection expected to take a few days, New Jersey voters will soon see how his defense unfolds in a federal courtroom in lower Manhattan.
The federal charges filed against Menendez in the U.S. District Court for the Southern District of New York include bribery and extortion to benefit Egypt and Qatar. He is not alone in facing those charges. Menendez has been charged − in four successive indictments − alongside his wife, Nadine Arslanian Menendez, and three businessmen, including one who has already pleaded guilty.
Menendez and Arslanian allegedly accepted hundreds of thousands of dollars, gold bars and a luxury car in bribes from Wael Hana, Fred Daibes and Jose Uribe in exchange for helping them enrich themselves and trying to help them resolve legal troubles.
More than $480,000 in cash was found stuffed into envelopes and hidden in clothing, closets and a safe at Menendez’s home in Englewood Cliffs, New Jersey, during a search by investigators in June 2022, the indictment says. Investigators also found more than $70,000 in Nadine Menendez’s safe deposit box. The indictment includes photos of cash that was stuffed into clothes, including a windbreaker with Menendez’s name stitched on it.
Some of the envelopes contained the fingerprints or DNA of Daibes − a developer and longtime political donor to Menendez − or Daibes’ driver, the indictment says.
Agents also found home furnishings provided by Hana and Daibes and a luxury vehicle paid for by Uribe parked in the garage. They also discovered gold bars worth more than $100,000 in the home, provided by Hana or Daibes, according to the indictment.
Since the first indictment last September, thousands of pages and countless motions were filed by prosecutors and all defendants, lawyers were dropped and added, a plea deal was made, and a surprising and still unknown medical diagnosis for Arslanian resulted in a separate trial for her.
Despite it all, the trial was delayed only one week from the original anticipated start date because of possible testimony from an attorney representing Daibes in a separate case but related to the indictment.
Selecting a jury
U.S. District Judge Sidney Stein will oversee the trial, which began Monday at the Daniel Patrick Moynihan United States Courthouse in lower Manhattan − just across the street from the New York state courthouse where former President Donald Trump’s hush money trial is underway. Menendez’s trial will begin with jury selection.
That process usually takes a day or two, but high-profile cases, especially ones that include politicians, can be more complicated, experts say.
Menendez shouldn’t have a hard time finding jurors in New York, as Trump did last month.
“He’s famous in New Jersey,” said Mitchell Epner, an attorney with Kudman Trachten Aloe Posner who has 30 years of experience with government enforcement, compliance and white collar litigation. “The jury pool from the Southern District of New York, my guess is north of 50% will have never heard of him.”
The Trump trial will also be a factor for jurors and publicity. “So much oxygen in the room is already taken out by Donald Trump’s trial,” Epner said. “If this was in Newark, there would be more publicity to affect a jury pool.”
Blair Zwillman, a former president of the Association of Criminal Defense Lawyers of New Jersey who has practiced in the Garden State since 1982, expects that the defendants will all have hired consultants to help determine what characteristics to look for in potential jurors, such as people who wouldn’t “necessarily find these actions as crimes” − and, for Menendez, possibly people with “similar immigrant backgrounds.”
What will the defense do?
Christopher Adams, a Monmouth County-based attorney and also a former president of the Association of Criminal Defense Lawyers of New Jersey, said Menendez’s team probably will employ three strategies, based on what it has done in the run-up to the trial.
The first, Adams said, could highlight Menendez’s “heritage regarding storing money and not trusting banks,” which will likely come with expert testimony “regarding trauma from his childhood that his parents instilled in him about being distrustful about banks and the government.”
The second strategy could focus on what is considered appropriate conduct by a senator, including lobbying, and the third would be “pointing the finger at his wife, what she may have done unbeknownst to him and deals she may have made.”
Adams said that with the trials for Menendez and his wife and co-defendant, Arslanian Menendez, now separated, that second strategy could be easier than if the pair had been tried together.
He also predicted that Menendez’s attorneys will try the “tried and true defense strategy of attacking the cooperators.”
Though the defendants have been called into court multiple times to discuss and decide on their representation, Adams doesn’t see that coming into play much during the trial. He said attorney Lawrence Lustberg, who is representing co-defendant Wael Hana in this case and co-defendant Fred Daibes in a separate matter, is “one of the most preeminent defense attorneys that is known in the Northeast, if not nationally, and his reputation is unassailable.”
Efforts to get the evidence that was found through warrants dismissed is standard practice, so Adams was not surprised to see those efforts. But he said motions filed at the beginning of the trial “will give an idea on how this is going to play out.”
“It’s my understanding that the government has basically dumped all their documents as an exhibit list that shows that they’re either trying to bury their strongest evidence so that the defense can’t attack it easily or that they weren’t ready for this trial start,” Adams said. “I think it’s the latter, because it’s very unlike that U.S. Attorney’s Office to not streamline their exhibits. Instead, they have tens of thousands of exhibits.”
Federal prosecutors will face a challenge in presenting evidence and connecting it to the narrative advanced in their indictments, defense attorneys said.
“Prosecutors are keenly aware of the fact that in order to prove this type of case, they’ve got to time-connect a political act to a specific payment,” Zwillman said.
The “key thing that the government has to do here” is connect a specific payment to an official act, such as a legislative action or contacting another government entity, he said.
“In any criminal case, a defense attorney or good defense team typically will not put their client on the stand,” Zwillman said. “Menendez would have a lot of explaining to do, because the circumstances are unusual, a senator having gold bars in his house … how do you explain that? The testimony is key, and obviously when a defendant takes the stand, an adept prosecutor will do everything he or she can to try to destroy the credibility of the defendant.”