Disgraced former U.S. Sen. Bob Menendez is asking a panel of judges to toss out his corruption conviction and order a new trial.
Attorneys for Menendez appeared before the Second Circuit Court of Appeals on Thursday alongside lawyers for his wife Nadine Menendez, real estate developer Fred Daibes and businessman Wael Hana. The four were convicted in a bribery scheme in which authorities say Menendez, a Democrat who represented New Jersey in Congress for more than 30 years, peddled his influence as the powerful chair of the Senate Foreign Relations Committee in exchange for cash, gold bars, luxury cars and other gifts.
Now the lawyers for the quartet want the convictions tossed and the case retried. They argue that Menendez’s actions were protected by the Constitution’s speech and debate clause, a protection they say should also extend to the other defendants.
The lawyers also argued that the inclusion of inadmissible evidence on a laptop that jurors used during deliberations was also grounds for tossing the convictions. Nadine Menendez’s lawyer also argued that the senator’s wife had her Sixth Amendment rights violated by prosecutorial actions.
Menendez is currently serving an 11-year sentence at a federal prison in Allenwood, Pennsylvania. Daibes and Hana were sentenced to eight years and seven years, respectively, and are both being held in South Jersey. The three of them stood trial in 2024.
Nadine Menendez was convicted at a separate trial last year and is now at a prison in Danbury, Connecticut, serving more than four years.
None of the four appeared in court on Thursday.
A fifth defendant in the scheme, businessman Jose Uribe, pleaded guilty and testified against the others. Uribe was sentenced to six months of house arrest and three years of probation.
The bulk of arguments Thursday focused on defense claims of legal protection under the speech and debate clause, a form of legal immunity offered to members of Congress for actions they take while doing their jobs as legislators.
This issue especially applied to Menendez’s actions around the appointment of Phillip Sellinger to serve as U.S. attorney for New Jersey. Prosecutors argued at trial that Menendez withheld his support for Sellinger until he was convinced that Sellinger could help affect a case involving Daibes. But Menendez’s lawyer, Noel Francisco, said any actions the senator took supporting or opposing Sellinger should be considered protected legislative action because it was part of his duty as a senator to advise the president.
Paul Clement, the attorney for Daibes, also argued that a senator’s work to advise the president is not limited to just official proceedings like congressional hearings or floor speeches.
Assistant U.S. Attorney Paul Monteleoni dismissed that, and instead argued that under the Constitution a senator’s work would be considered advising until Sellinger was actually nominated.
“You can’t just purport an immunity,” Monteleoni said.
The three judges hearing the appeal — Judge Beth Robinson, Judge Dennis Jacobs and Judge Barrington Parker — appeared open to the defense speech and debate argument.
Clement said any speech and debate protections that applied to Menendez would also extend to Daibes and Hana in this case, because they were all wrapped up in the same actions.
Francisco also argued prosecutors had failed to prove any of Menendez’s actions in the scheme constituted official acts — something that would be needed to prove a quid-pro-quo arrangement. Francisco focused heavily on a 2019 meeting that Menendez had with Gurbir Grewal, New Jersey’s attorney general at the time. Grewal testified at the time that Menendez requested the meeting to discuss a state investigation into Uribe’s trucking company, but that he did not contact his investigators about the matter after hearing the senator out.
Prosecutors used this meeting as an example of Menendez using his influence to benefit people that were bribing him. But Francisco argued there was no evidence Menendez actually pressured Grewal.
Judge Beth Robinson expressed skepticism of Francisco’s argument on the issue, saying the standard the defense attorney was attempting to set for defining an official act “seems like a higher bar than the Supreme Court set.”
Defense attorneys also honed in on the prosecution’s mishandling of evidence on the single laptop that was used by jurors during their deliberations. Prosecutors admitted during the trial that they had accidentally included documents on the device that were not supposed to be part of the record, raising the risk that jurors could be unfairly swayed against the defendants.
The district court trial judge, Sidney Stein, had determined the jury was likely unaware of the inadmissible evidence on the laptop, because it was a miniscule number of documents compared to the thousands of pieces of evidence stored on the device.
Sarah Krissoff, the attorney representing Nadine Menendez, focused on a claim that prosecutors violated her client’s Sixth Amendment rights by keeping David Schertler — Nadine Menendez’s original attorney — on the witness list. Krissoff argued that effectively forced her client to drop Schertler, denying her the right to counsel of her choice.
A district court judge previously dismissed this argument. Monteleoni said Nadine Menendez could have kept Shertler as her lawyer if they had agreed to a stipulation with prosecutors.
“The defendant received a fair trial,” Monteleoni said.
The defense lawyers had also argued in pre-trial briefs that the case was improperly brought in the Southern District of New York, and should be retried in the District of New Jersey. Robinson asked Monteleoni about the issue; he argued the DOJ believed the trial was held in the appropriate venue because cash deposits and gold sales related to the bribery were made in the Southern District.
