Bob Menendez could skate on corruption charges again

After a federal jury found Bob Menendez guilty of bribery and acting as a foreign agent in July, I assumed the U.S. Supreme Court would eventually toss the verdict like it has in other high-profile political corruption cases.

Now I fear the case will be doomed much sooner than that, allowing Menendez to skate yet again. Except this time it won’t be a deadlocked jury that allows his cartoonish corruption to go unpunished — it will be a major error by prosecutors, who have admitted handing evidence to jurors that the judge overseeing the case barred from being introduced.

“Giving the jury evidence that was formally excluded through a ruling by the judge is a big, big mistake,” said Thea Johnson, a professor of law at Rutgers Law School in Camden and a former defense attorney.

Here’s what happened:

During Menendez’s trial, prosecutors wanted to submit a few documents they said would prove their accusation that Menendez, while a U.S. senator, took bribes in exchange for the release of aid and arms to Egypt. But defense attorneys successfully argued that because portions of the documents referenced legislative acts Menendez took, they could not be submitted as evidence without violating the U.S. Constitution’s speech and debate clause. The clause gives members of Congress a type of immunity when it comes to investigations into their official duties.

Prosecutors, arguing that this evidence was “critical” to their case, offered to redact portions, and Judge Sidney Stein allowed those to be submitted as evidence. But, prosecutors told Stein last month, they discovered that when they loaded a laptop with evidence for the jury to review during deliberations, they did not include all the redactions.

Prosecutors have declared this is all a giant oops that probably means nothing because the laptop was filled with so many documents, the jurors probably never saw the ones the judge had barred them from seeing. But Menendez’s attorneys — and those for the two co-defendants found guilty alongside him — argue the guilty verdicts need to be thrown out.

I did not think much of Menendez’s defense during the trial. One of New Jersey’s slyest Democrats spent a lot of time arguing that his wife was being underhanded without his knowledge. How was I supposed to know the brand-new Mercedes Benz that showed up at my Englewood Cliffs home was paid for by a man seeking my influence, he argued. But on this, I think and fear the defense may be in the right.

Johnson cautioned me that judges are loath to throw out verdicts handed down by juries. But prosecutors’ argument that the Menendez jury likely didn’t see the documents in question “strikes me as somewhat of a weak argument,” she said.

“You really can’t figure that out. You’re really not supposed to go in and question the jury about how they came to a decision,” she said. “I do think that the safe bet would be to grant a retrial.”

Imagine. Menendez — for decades the white whale for prosecutors who were certain he was uniquely corrupt even by New Jersey standards — escapes a guilty verdict in his first corruption trial because of a hung jury, is reelected despite the unsavory details from that trial, almost immediately begins a second bribery scheme that involves global actors, is indicted again in a case that started a chain reaction leading to the downfall of the county line … and now it may just go poof, all because someone in the U.S. Attorney’s Office attached the wrong pdf.

“My strong expectation is that when the prosecutors realized that the mistake had been made, there was a ‘oh, poop’ moment,” said Mitchell Epner, a former federal prosecutor in New Jersey who now works as a white-collar litigator in New York. “They clearly did the right thing in informing the court and the other side that this mistake had been made — that speaks to their ethics. But this is a problem that they certainly wish they did not have. And it is a real problem.”

Here’s another problem for those of us who prefer our public officials not accept gold bars as gifts from men seeking favors: Damian Williams, the U.S. attorney for the Southern District of New York, which prosecuted the Menendez case, is stepping down this week to make way for President-elect Donald Trump’s pick for that job, former U.S. Securities and Exchange Commission Chair Jay Clayton. If Stein throws out the guilty verdicts and orders a retrial, will Clayton bother retrying it? It’s a complicated case with a mountain of evidence that occasionally bored some jurors to sleep, and the chief target is no longer a senator. What are the odds that Trump’s pick for U.S. attorney will want to relitigate the Menendez case instead of targeting those on Trump’s public enemies list?

“Any time a new U.S. attorney becomes in charge of an office, they have different priorities and goals than the old U.S. attorney, and public corruption may be less of a priority,” Johnson told me.

Stein has yet to decide on the defense team’s motions to toss the verdicts, and he very well may side with prosecutors here. He could also allow Menendez’s team to investigate how the wrong documents ended up on the jury laptop, a process that could unearth even more prosecutorial mistakes and, Epner noted, delay Menendez’s sentencing further.

“A lot of people in the criminal justice world, when they saw the new charges against Bob Menendez, thought to themselves, I can’t believe that this guy, having gotten a get-out-of-jail-free card once, has put himself in harm’s way again,” he said. “It would be absolutely at the outer limits of credulity to imagine him skating a second time. But the prosecutors brought this on themselves by failing to make certain that only the correct documents were provided to the jury.”