The legal team representing federally indicted Senator Bob Menendez filed a new motion yesterday arguing that due to allegedly serious flaws in the U.S. Attorney’s indictment, the corruption charges against the senator should be dismissed or, at a minimum, the trial venue should be changed and Menendez should be granted a separate trial from his wife.
It’s the second motion to dismiss that Menendez’s attorneys have made this month, following a motion filed on January 10 declaring that the charges should be thrown out because they pertain to conduct that is protected by the Constitution and Supreme Court precedent. The trial against Menendez, a three-term senator and a former chairman of the Senate Foreign Relations Committee, is scheduled to begin in May.
“This case is riddled with foul blows that now require the Court’s intervention,” Menendez’s attorneys wrote a memorandum of law supporting the motion they filed yesterday. “In sum, both given the serious Constitutional and statutory issues raised in the Senator’s First Motion to Dismiss and the defects in the Indictment raised in this motion, this case must be dismissed.”
The new motion makes three separate claims: that the Southern District of New York is an inappropriate venue for the trial to be held, since few of Menendez’s alleged crimes took place there; that many of the charges against the senator improperly lump distinct allegations under one overarching banner; and that Menendez has a right to be tried separately from his four co-defendants, one of whom is his wife Nadine.
On the first point, Menendez’s lawyers note that although the charges were brought by the U.S. Attorney for the Southern District of New York, the case’s connections to New York are tangential. That, they argue, should justify dismissing the charges or moving the case to New Jersey, where most of the alleged criminal activity was based.
“[The trial’s] outcome could directly implicate whether New Jerseyans continue to be represented by the person duly and democratically chosen by them,” the motion reads. “That outcome – particularly one concerning the alleged violation of New Jerseyans’ trust – should not be determined by an out-of-state jury. Especially considering the tentative basis for venue in this district, the interests of justice weigh in favor of transfer to New Jersey.”
(What goes unmentioned is the fact that the U.S. Attorney’s Office for the District of New Jersey is itself a key part of the corruption case against Menendez; according to the indictment, Menendez tried to influence the appointment of a new U.S. Attorney in order to assist a friend who had been hit with federal criminal charges.)
The motion additionally claims that the charges against Menendez are “impermissibly duplicitous,” since they pertain to several different corruption schemes involving three distinct co-conspirators and taking place over several years. By combining multiple allegations into one set of charges, prosecutors “[risk] a non-unanimous verdict of guilt, improper sentencing, and potential double jeopardy,” the motion says.
Finally, Menendez’s attorneys argue that Menendez should be tried separately from his wife, who is charged on many of the same corruption counts. By holding the two trials together, they argue, Bob and Nadine Menendez may be unfairly forced to testify against one another.
“Senator Menendez will find himself in a Catch-22: He will be forced to choose between his right to testify in his own defense (and being examined about his own wife’s conduct) and his right to exercise his own testimonial spousal privilege to decline to offer testimony in any case against Nadine,” the motion reads.
Senator Menendez’s trial, the motion asserts, should be held first, prior to Nadine Menendez’s trial and prior to those of Wael Hana, Jose Uribe, and Fred Daibes, the three New Jersey businessmen who are alleged to have given the senator gifts and cash in exchange for influence in Washington.
The charges against Menendez and his four co-defendants were first publicly released in September, detailing an alleged years-long bribery scheme; it was Menendez’s second time under federal indictment, after a 2015 case that ended in a mistrial. Additional charges of acting as a foreign agent of the government of Egypt were filed against the senator in October.
Menendez has pleaded not guilty to all charges, but the outcome of the legal proceedings may not matter much in the court of public opinion. Polling shows the senator to be deeply unpopular among every demographic group, and he stands virtually no chance of winning a fourth term in office if he tries to run for re-election this year.