Embattled Sen. Bob Menendez (D-NJ) and his accused co-conspirator wife may be looking to separate in court—but legal experts say that’s no sign their bond isn’t still strong.
The duo, charged with taking bribes from shady Garden State businessmen and acting as agents of the Egyptian government, triggered a spurt of speculation Monday night when they filed motions to sever their cases and force the government to prosecute them in two separate trials. At the heart of their arguments was the revelation that the veteran Democratic lawmaker plans to testify in his own defense—but worries that doing so could unfairly force him to forfeit his legal right not to incriminate his wife.
“A joint trial of Senator Menendez with his co-defendants will: force Senator Menendez to make an impossible and prejudicial choice between testifying on his own behalf and exercising his spousal privilege to avoid being converted through cross-examination into a witness against his spouse,” reads the brief Menendez’s high-power legal team filed in Manhattan federal court. “Senator Menendez intends to present a defense arguing (in part) that he lacked the requisite knowledge of much of the conduct and statements of his wife, Nadine, and thus lacks scienter and did not agree to join any of the charged conspiracies. By this defense, senator
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Menendez’s legal team may have to argue, in effect, that any unlawful conduct—and we are aware of none—involved the actions of others (including Nadine), not the senator.”
But rather than indicating that the pol hopes to hurl his beloved beneath the wheels of the proverbial Bureau of Prisons bus, experts The Daily Beast consulted argued that this is a joint legal maneuver aimed at preserving both defendants’ freedom. Shan Wu, former counsel to U.S. Attorney Janet Reno and columnist for The Daily Beast, argued that the Menendezes each might have better luck convincing a jury of their individual innocence than trying in tandem.
“I think it's more of a tactic than a sign that there’s trouble in paradise, because it still looks like the legal teams are working together,” said Wu. “Having the husband and wife together in court, it’s just very bad optics and makes it look like they’re in cahoots.”
But Wu said he thought the legal justification for severing their proceedings was “a loser argument.” The erstwhile federal prosecutor asserted that if Menendez takes the stand, waives his Fifth Amendment and spousal privilege rights, and dishes on his bride in cross-examination, it wouldn’t matter whether she was on trial at the same time or shortly thereafter, since it would constitute evidence against her either way.
“What difference does it make if she’s sitting in the courtroom or not?” Wu wondered. “‘Don’t make me choose between defending myself and incriminating my spouse’—severing the trials does not solve that problem.”
Wu raised another possibility: that the true purpose of the motion might be to alert the Department of Justice that the senator possesses valuable information relevant to the case, and to thus initiate a dialogue that could lead to a plea deal.
“By suggesting there’s something out there that could be incriminating, rather than saying, ‘go pound sand, neither of us have anything to say,’” Wu said. “That is a way to tease out a plea deal, because it makes the prosecutors say, ‘how much dirt do you have on her?’”
But another former federal assistant U.S. attorney was skeptical of this idea. Andrew Lourie, who once led DOJ’s Public Integrity Section, agreed with Wu that it’s common for one half of an indicted couple to cop to crimes in order to save the other. But he argued the moment for that has likely passed.
“If the government were going to give that opportunity, it usually would be before charges are filed,” he said.
Lourie thought that the senator’s argument for severing the two cases was “decent” at first glance, but its strength would depend ultimately on what facts the prosecutors present in their response.
“Husbands and wives enjoy certain privileges, and if you try them together, it brings into play those privileges,” Lourie said. “He’s saying, ‘we’re unaware of any crime committed by anybody,’ but he wants to be able to testify in a way that also doesn't turn out to hurt his wife’s defense."
Lourie noted that the prosecutors’ case draws heavily on exchanges the senator’s wife had with Egyptian officials and their co-defendants—and in a fully separate trial, he argued the senator could assert, effectively, “‘if my wife had the conversations the government alleges, she never shared that with me.’"
He could then invoke his right not to incriminate his spouse when her trial came up, refusing to serve as a witness and rendering his testimony in his own case worthless to the Justice Department.
“They have no way to get that into evidence, because that’s hearsay if it’s offered by the government as true. You need to have a witness who can testify and be cross-examined,” Lourie said. “By trying them separately, you can silo the evidence."
Both attorneys, however, thought little of Menendez’s efforts in the same late-Monday motion to get the case switched Manhattan’s federal court to New Jersey’s, or to additionally sever his case from the two businessman who allegedly bribed him, Fred Daibes and Wael Hana.
