Congress Courts & Litigation Criminal Justice & the Rule of Law

Lawfare Daily: Senator Menendez On Trial

Quinta Jurecic, Molly E. Reynolds, Eric Columbus, Daniel Richman, Jen Patja
Monday, June 17, 2024, 8:00 AM
What is the status of the criminal case against Senator Menendez?

Published by The Lawfare Institute
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Lawfare Senior Editors Molly Reynolds and Quinta Jurecic checked in on the status of Senator Bob Menendez’s ongoing criminal trial in the Southern District of New York. Together with Dan Richman of Columbia Law School and Eric Columbus, who previously served as special litigation counsel at the U.S. House of Representatives’ Office of General Counsel, they discussed the challenges faced by prosecutors in bringing corruption charges against a sitting member of Congress. 

The Justice Department alleges that Menendez took bribes in exchange for unregistered lobbying for the governments of Egypt and Qatar—among other incidents of unsavory behavior. But after the Supreme Court’s decision in McDonnell v. United States, and given the protections available to members of Congress under the Speech or Debate Clause, will prosecutors be able to make the charges stick?

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Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



Eric Columbus: According to the indictment, Menendez wanted this guy to be named U. S. Attorney because he thought that he would go easy on a buddy of Menendez who was in some legal trouble. And then secondly, some stuff involving Menendez's meanings and actions concerning foreign aid to Egypt.

Quinta Jurecic: It's the Lawfare Podcast.

I'm Quinta Jurecic, Senior Editor, with my fellow Lawfare Senior Editor Molly Reynolds along with Dan Richman of Columbia Law School and Eric Columbus, who previously served as Special Litigation Counsel at the U. S. House of Representatives Office of General Counsel.

Dan Richman: I think the government's done a very nice job on the facts here, teasing out how a number of the things that Menendez did arguably are not legislative acts --- are something far short of it.

Quinta Jurecic: Today, we're talking about the ongoing corruption trial of New Jersey Senator Bob Menendez. Dan and Eric, thank you so much for joining us to talk about the only prosecution, at least that I know of, that both involves a sitting senator and literal gold bars. To begin with, I think it would be useful to just have a brief overview of what exactly it is that Senator Menendez has been accused of. I don't know which one of you would like to jump in.

Dan Richman: I could start. Although, as I mentioned to Quinta before we went on, Lawfare has set the gold standard for trial coverage, and I worry that I'm not exactly up to its standards on factual recitations. But essentially, there's a broad conspiracy charge, and out of it are brought some sub conspiracies and substantive accounts that essentially have Senator Menendez with his wife receiving substantial amounts of money and or gold bars and or cars for doing a variety of favors or asks for the Egyptian government, for people connected to the government, and for associates of theirs, both with respect to doing things in Menendez's straightforward senatorial capacity and his intervening in investigations being pursued by, in one case, the state attorney general, and in the other case, the attorney's office.

Molly Reynolds: So Dan, you and Quinta actually recorded a podcast on this case back in the fall of 2023, so many months ago, after Menendez was first indicted. And one of the main issues that you and Quinta talked about then had to do with the difficulty of prosecuting corruption cases under the precedent in McDonnell v. United States, which is a 2016 Supreme Court decision.

Dan, can you talk a little bit about what the court ruled in McDonnell and why is it relevant to the Menendez case?

Dan Richman: In McDonnell, the court did a number of things. First, it built on existing precedents to really hammer home how, when bribery is charged --- and in that case, the bribery charges were under the Hobbs Act and the color of law theory, and the wire fraud on a services theory --- but essentially the court when addressing bribery definitions took what it read as the requirements from the federal bribery statute of 201, and now that we'll get to the heart of it, said, yes, there definitely has to be a quid pro quo with respect to the acceptance of payments by a public official, but more importantly, and this is where McDonnell pushed forward, the quid pro quo had to be with respect to very particular things, “official acts” being the term of art. It's not enough that a public official took money to merely set up a meeting or make some phone calls. What we're looking for is some truly official decision or other sort of act that is with respect to something of substance. So that was the big move in McDonnell.

And of course, with every big move the court makes, it leaves open a ton of questions. And in particular, McDonnell leaves open a ton of questions about how it works in the real world. In the real world, and particularly we see it in the Menendez case, heavy hitting public officials, of the sort that Menendez is, have the ability to get things done in other than formal legislative or executive ways.

They put pressure on other people. On other people who aren't necessarily their hierarchical subordinates but people who don't just respect the office, but have a good and educated sense that the senator can hurt them if they don't do what he asked. So the question is, when you put pressure on people to do things, and you do it through a phone call, and you do it through a meeting, does that count?

To what extent does the official act of that other person provide the official act necessary for a bribery charge? And the court in McDonnell said, yeah, I think so. And they have some nice dicta opening the way for theories of pressure, but, as is their wont, the court gave very little help to lower courts and prosecutors as to how exactly that works.

A little pressure, is that enough? What about nice, a nice ask? These are all things that are both important in working out the doctrine and are going to be really important in the juries. Approach to the instructions they get in this case and to any issues on appeal should he be convicted.

Quinta Jurecic: So prosecutors are grappling not only with the sort of the legacy of McDonnell, but also with the very specific problems that result from trying to prosecute a member of Congress. And by that, of course, I'm referring to the speech or debate clause. So, Eric, I want to turn this one over to you. Can you explain what speech or debate immunity is and how it relates to this case?

Eric Columbus: Yes, the speech or debate clause of the cConstitution says that “for any speech or debate in either house, they,” --- and they refers to senators and representatives --- “shall not be questioned in any other place.”

The Supreme Court has read that expansively in order to fulfill the clause's purposes. The purpose of the clause basically is to protect Congress from being harassed, attacked, impeded in its ability to do its job by the executive branch and the judicial branch. And it protects not just literal speech and debate within Congress, but also acts such as voting or issuance of subpoenas, committee reports conducted hearings. For example, it's impossible to directly challenge a subpoena that's been issued to you, which is something that some people often don't know about. Even one James Comey discovered to his chagrin when he tried to sue a house committee that issued him a subpoena.

Dan Richman: I was a lawyer on that case and yes, it was an uphill and losing battle.

Eric Columbus: So in, in this case, there's basically been a trio of Supreme Court cases from the late 60s to the mid 1970s trying to sort out how the speech or debate clause comes into play where members of Congress are indicted. The first one was a case called United States v. Johnson in 1966, where a former congressman was convicted of violating the conflict of interest statute and conspiring to defraud the United States. He was allegedly involved in a scheme to attempt to influence the DOJ to dismiss pending mail fraud indictment against the bank. And as part of the conspiracy, he was allegedly paid to give a speech favorable to the banks. And at trial, the government showed that the speech was prepared solely to help private interests, and it wasn't prepared the normal way.

And they literally questioned him about his speech in the trial. And somehow this went all the way up to the Supreme Court. And you would think it would be somewhat obvious that they shall not be questioned in either house. They shall not be questioned in any other place means that you cannot cross examine a member of Congress about his own speech, his own literal speech. And the Supreme Court said, no, you cannot do that. Literal violation of the Speech and Debate Clause.

A few years later, a case United States v. Brewster involving a senator from Maryland named Daniel Brewster, one of his former interns became House Speaker Nancy Pelosi. Another one, at the same time, I believe, was Steny Hoyer, who became a majority leader under Speaker Pelosi.

And he was indicted for bribery. And the basic question was, can you indict a senator for bribery? And Supreme Court said yes. Maybe somewhat surprisingly, three justices said no. Justice Brennan, Justice White, and Justice Douglas. And the Brewster Court drew a distinction that will be important down the line.

The court said yes, you can indict for bribery and try a former member for bribery because the illegal conduct is not the legislative act performed by the senator, but rather the promise to reform the legislative act. So you violate the statute when you agree to take the bribe and when you or when you get the money.

It's not when you cast the vote in favor of the interests of the person who bribed you. So in that sense, they did not need to look at any legislative act by Senator Brewster in order to indict him and to prove the case. The third case, and the one that is most directly relevant here, is a case called Helstoski, in which the Supreme Court faced then, as now with an allegedly corrupt congressman from New Jersey. I know it's a surprise to see this happen more than once.

Quinta Jurecic: We’re doing our part. I speak for all New Jerseyans.

Eric Columbus: Was being tried for accepting money in return for promising to introduce, and actually introducing certain bills, and the question was, at trial, the judge said the rule of the government cannot be allowed to offer any evidence of the actual performance of any legislative act.

And the government appealed that before the trial. And the Supreme Court said, yeah, that's right, actually. As we said in Brewster, promises by a member to perform an act in the future are not legislative acts. But you can't refer to a past legislative act without undermining the values protected by the Speech or Debate Clause.

That sets up what's happening in the Menendez case. Now, there are these two sets of issues. Some speech or debate issues in the Menendez case were resolved on a motion to dismiss, and some issues are being fought over now.

Quinta Jurecic: Yeah, so actually let's take it chronologically. What happened at the motion to dismiss stage? And then once we have a sense of the picture, then we can go on to the evidentiary rulings that are startling prosecutors up now.

Eric Columbus: Yeah, so at the motion to dismiss, Menendez's lawyers, went and said, look, judge, there are a couple of issues here that you got to kick from the case. One is this business in the indictment about Menendez recommending to President Biden, a candidate for a U.S. attorney for the district of New Jersey, who, according to the indictment, Menendez wanted this guy to be named U. S. Attorney because he thought that he would go easy on a buddy of Menendez who was in some legal trouble. And then secondly, some stuff involving Menendez's meetings and actions concerning foreign aid to Egypt.

And the court did not agree and declined to limit the indictment to kick out those charges. It's interesting. On the first issue, the Constitution, as everyone knows --- maybe not everyone --- says that the president shall nominate, and by and with the advice and consent of the Senate, shall appoint officers of the United States, including U.S. attorneys. Now, the question is advice. Does that mean that Menendez trying to lobby the President to pick a certain person, is that part of the advice and consent of the Senate? The court said, no, it comes after both in that sentence, and chronologically and logically, the president nominates, and then the senator's role kicks in when the senator is just doing stuff beforehand. He's basically just trying to lobby the president like anyone else does. And so that was considered to be not protected by the speech debate clause and was not excluded from the indictment.

Quinta Jurecic: There's actually one point here about this U.S. Attorney's bit. Dan, I want to pull you in here. Zooming forward in time to the trial as it's ongoing so that person who Menendez reached out to is now, in fact, the U.S. Attorney for the District of New Jersey, which I think may answer a question that Dan and I had been asking in the fall about why is this case not being prosecuted in New Jersey and why is it being prosecuted in the Southern District of New York.

But one of the interesting things is that according to the New York Times, Sellinger, the U. S. attorney, actually was on the stand, was questioned about this interaction with Menendez, and testified essentially that what happened is that Menendez reached out to him and said, if you were picked to be U.S. attorney, maybe you could help me with this. And Sellinger called him back the next day and said if I'm appointed U. S. attorney, I will need to recuse myself from this issue. Which, according to the Times, Sellinger then testified, essentially ended their friendship. So Dan, from a kind of DOJ perspective, it struck me that Sellinger is being put in a bit of an awkward position there, but it seems like he handled it relatively well. That's what you'd want to see.

Dan Richman: Yeah. The general idea is telling the truth is what one needs to do, and it sounds like that he gave a narrative that both makes sense and from a very distant perspective, since I don't know the facts, sounds quite plausible, but it also highlights the double-edged sword of this Speech and Debate Clause issue because, of course, I don't know the facts.

It is hard when prosecutors need to prove a quid pro quo that is with respect to some legislative deliverable, and they can't prove whether or not it was delivered. There's that missing piece of the story that jurors are always wanting to hear and that sounds odd for being excluded.

On the other hand, as we see in this U.S. attorney episode, the delivery often isn't a real delivery. What happened in the U.S. attorney's office, at least the way the testimony has come in, is that Menendez made a very bleak ask without even referencing a particular case, talking about unfairness with regard to these fraud prosecutions, and you could easily say to the extent that the offense turns on proving whether or not he went forward and did what he promised, he didn't really. At least not very forcefully. But in this case, the government can come back and say, yeah, but the key is what he promised to do, and what he thought he was doing, which was to deliver some sort of relief. And the fact that he actually didn't really do much in the way of pushing is really beside the point.

So this deliverable or delivery or non delivery is, to some extent, a bit of a red herring to me. Both when it hurts the government and when it helps the government.

Molly Reynolds: We're going to come back to this sort of double-edged sword tension between the kind of official acts, speech or debate issue in a second.

But first I want to go back to Eric and make sure we finish talking about the way, particularly in this series of evidentiary rulings, the speech or debate issues have been playing out in the case and the challenges that they've been creating for prosecutors.

Eric Columbus: Sure. Do you want me to wrap up with the second issue on, in the motion to dismiss or no?

Molly Reynolds: Sure.

So then, on the second issue about Egypt, it turns out that senators can place holds on the delivery of foreign aid as part of this informal practice at the State Department. Recognizes, even though they have no legal ability to do this. The district court said that is enough to constitute a real legislative act.

And in so doing they quoted in passing a third circuit decision from 2016, which happens to be titled United States v. Menendez, and just happens to be from the Senator's earlier prosecution on corruption charges. If you live long enough, things begin to repeat themselves, and it sometimes takes only eight years.

The judge eventually ruled that this was not, in fact, something that needed to be excluded, or the indictment needed to be dismissed upon, based on speech or debate immunity, because this involved only promises to take official acts and did not involve any evidence of the act itself, a distinction that becomes crucial now as we turn to the current battles over introduction of evidence.

Now there have been a bunch of squabbles between the judge, or rather between the parties, over the introduction of certain evidence that this has led to reports in the Times and in Politico, and these appear to be little pieces of evidence that were --- are --- in the indictment itself, but doesn't mean that they can necessarily be introduced into evidence.

For example, there is one text message that Menendez's wife sent one of their co-conspirators with a link to an article that she received from Menendez about pending military sales. And she wrote, “Bob had to sign off on this.” Now, Menendez says that this is evidence of an official act and a legislative act and you can't introduce that in, into the trial.

And the judge agreed citing the Helstovski case. What the government says by contrast is that this is actually a different from Helstovski because it's a third party talking about this. It is not the Senator and that what the government is doing trying to introduce it for evidence is not trying to introduce it to show that there is a legislative act going on, but rather to show the mental states and the understandings of the co-conspirators.

And as I think Menendez correctly notes, that doesn't matter. That doesn't matter for the purposes of the reasons why we have the Speech to Debate Clause and why it is used to limit the introduction of evidence. The government, in response to the judge's ruling, sounded --- I don't know if hurt is the right word --- but they suggested one point that it is difficult to see how any gratuity charge could ever be proven if Menendez were correct that such evidence is barred, which is rather a strong language and somewhat surprising thing to say, actually, to a judge who has just ruled against you and when you're asking for reconsideration. Which is something you're likely to get.

Molly Reynolds: Thanks, Eric. And I think this gets at, for me, one of the central bigger picture questions of this case, which is if we take the speech or debate restrictions that you've just laid out, Eric, and we combine them with what Dan has told us about McDonnell, it really seems that prosecutors are in a bind here.

There's a tension where prosecutors can't talk about legislative acts, but the things that they can talk about might not actually rise to the level of official acts under McDonnell. And so, I'm just curious --- Dan, maybe we'll start with you --- what does this mean for our ability to use criminal prosecution to hold members accountable? And we can talk about what other avenues we have, but does this really restrict --- these two things taken together --- really restrict what prosecutors can do to try to hold someone like Menendez accountable for what he's accused of doing?

Dan Richman: Yeah, the defense papers and their strategies, their legal strategy is reliant, as you suggest, on this kind of cute syllogism that anything that Menendez does in his legislative capacity is covered by speech and debate.

And if it's, but it's only things that he does in his legislative capacity that counts as official acts under McDonnell. So therefore, prosecutions are impossible. That's not quite right. I think the government's done a very nice job on the facts here. Teasing out how a number of the things that Menendez did arguably are not legislative acts or something far short of it.

The upfront effort to steer the administration, to pick a particular U.S. attorney, the effort to intervene with what was happening in the AG's office. These are, to my mind, less troubling than the national security risks when a senator sells his offices to a foreign power, but they work a whole lot better in creating some daylight between these two legislative act definitions that Menendez has focused on.

One thing, though --- that's not to say that there's nothing to his point. I think as Eric was suggesting, there, there's quite a lot of substantial, important evidence that does get excluded via the speech and debate clause. Now, that's not a problem if you're using undercovers and wire everyone up as they did an ABSCAM and get these commitments to do particular things on the record, that's all lovely because, as Brewster makes clear, commitments to do things on the floor of the House can still be prosecuted without offending the speech and debate clause.

The problem is that undercover operations of that sort are rare. And we're generally dealing with these retrospective cases involving some mix of cooperators who have credibility issues by definition and circumstantial evidence. And to the extent you're making out a case of a corrupt transaction, based on circumstantial evidence, the inability to show delivery on the floor of the house or in some official act really does take a real hit on the government's case.

The hit is hard to measure in the sense that if the jury were told up front, Hey, one thing you can't hear about is delivery. You're not to speculate on it. Just put it out of your mind, etc. I'm not sure the problem would be so significant because jurors happen to be like us, and they'd figure it out.

But that's not the way it works. And it leaves a real uphill slog for the government in proofing up corrupt deals that involve clear deliveries in the form of legislative acts where you don't have an undercover or where you don't have fantastic emails or tapes or something of that sort.

Molly Reynolds: Thanks, Eric. Anything to add on this question of how these two, the speech or debate clause and the principles of McDonnell sort of interact to make it hard to hold members accountable?

Eric Columbus: First, I wanted to ask Dan, actually, about something he just said about informing the jury and how the jury is not informed that they won't hear anything about delivery.

Why can't that be done? Either at the beginning or in the jury charge, at the very least, explain the elements in a way that makes clear that delivery is not needed to be proved.

Dan Richman: And I'd be happy to be wrong in thinking that's such a charge. And I certainly haven't seen the government's request to charge here any supplementary their requests they've made.

I'd be a little surprised if, were they to ask that they'd get it, just because of the risks that, as I was suggesting before, maybe that would be deemed as a constitutional matter too cute by half in the sense that if you told jurors not to speculate about it they might, and to the extent they did speculate on it and weren't really precluded and we couldn't trust that instruction from keeping them from doing so then we would have the constitutional issue For all the reasons you gave.

It's worth thinking about, but I'd be surprised if it was really considered an adequate solution to the problem.

Eric Columbus: Interesting the distinction between the official act issue and the speech and debate clause issue. One of them, one of those issues could be resolved by Congress at any time.

There's no obstacle to Congress overturning the McDonnell decision or doing something that pares it back. And now a cynical person might say that Congress is not going to do anything that will make it easier to serve up its members to the Federal Bureau of Prisons.

And that could well be right. But in theory, there's no reason why that can't happen.

Dan Richman: I guess I want to push back a little because it seems that in its infinite wisdom, the Supreme Court isn't very attentive to the words of Congress in these cases. The official act language we're talking about in McDonnell was in a case involving the Hobbs Act and the mail fraud statutes, two statutes that don't in any way mention official acts. They, the court, decided as part of its project to protect politics as usual to bring in those words from 201. And, in another example, I don't want to predict the future, but I suspect that when Snyder comes down shortly involving 666, the federal program bribery statute, it will be the court saying that word “reward” in the statute that Congress explicitly used doesn't really mean what the English language would suggest it means. So yes, as a theoretical matter, Congress really does have the power. At the core of the Court's separation of powers and attack on the administrative state is this idea that Congress can do whatever it wants, when it wants.

But it turns out that the Court is putting considerable constraints on what Congress can do in not exactly a constitutional vision, but in a sub-constitutional vision of protecting politics as usual. So, you're exactly right. You could change the statute. I'm not sure what words and stars and underlying Congress could do to really make the court shift its position

 on the space it's carving out for politicians to do what politicians do.

Eric Columbus: McDonnell was a unanimous decision.

Dan Richman: Yes.

Eric Columbus: And as some of its predecessors leading up to it, and Fischer definitely will not be. Which kind of suggests that it's not strictly the same division as what we've seen in the campaign finance cases where we see the court trying to make it harder to limit a certain set of tawdry things that politicians do. In the McDonnell official acts arena, it seems to come from a place of beyond ideology, wouldn't you agree? Yeah? Beyond partisan ideology.

Dan Richman: Yes, I do think that. Oh, yes, this, my criticism is not that they're acting partisan. My criticism is that they are implementing a vision of what politics should look like in its relationship to criminal law that is not particularly guided by Congress.

And isn't at least so far as they've explained required by the Constitution. It's more their ideas of what should be tolerated or at least immunized from prosecution and what shouldn't.

Eric Columbus: Yeah. In the Speech and Debate Clause area, interestingly, which is obviously part of the Constitution, the Supreme Court has said, and actually in each of those three cases, Johnson, Brewster, and Helstoski, they said, look, we're not considering the situation where Congress passes a narrowly drawn  statute, basically applying it only to itself.

That would allow certain legislative acts to be used against a member of Congress in a criminal proceeding. And the Court at one point, I think, noted some reasons why such a statute might still be problematic because the speech and debate clause protects individual members and doesn't necessarily protect only Congress as a whole, but that it's interesting to know that is one option that Congress could take a run at trying to remove these protections if George Santos --- I guess George Santos --- all of George Santos’ conduct precedes his his entry into Congress, but there's a situation where someone just so distasteful gets off due to the Speech and Debate Clause and Congress is willing to, in some sense, fall on its sword.

Maybe that's the type of thing that could have some value down the road. I don't know.

Molly Reynolds: It's funny, Eric, that you introduced George Santos into this discussion. Before we move on, I do want to note that we in addition to this possibility of criminal prosecution, have the ability of the House and Senate to discipline its own members through expulsion.

It is, I think, at least worth contemplating why the Senate has chosen not to expel Bob Menendez, but the House did expel George Santos. It's not a story entirely that you can entirely tell by politics because Santos got expelled and then got replaced by someone of the other party, whereas, Menendez, if he had been expelled, would have been replaced by an appointed member from a governor of his own party. But I do think that the challenges that the current Congress faces in disciplining its own members add an extra layer, I think, of importance to this discussion about where and how the limits of criminal prosecution come into play in terms of trying to hold someone accountable.

Eric Columbus: Yeah, I agree. It's also worth noting, though, that Menendez, whatever happens in this trial, Menendez has already been effectively disciplined. He was disciplined by the voters in the Democratic primary. He didn't even run, right? I don't remember what happened.

Molly Reynolds: This is another question that we’ll come to, which is the idea that Menendez got indicted, he elected not to file in the Democratic primary, but has now said that he is collecting signatures to run as an independent on the ballot in November.

But I think it's a fair point, Eric, that we don't want to sell the voters entirely short here on their role as an accountability mechanism, even in situations where both criminal prosecution and probably internal cameral discipline may not deliver the kinds of accountability that might be important.

Dan Richman: One thing to always think about when you're thinking about alternatives to criminal prosecutions is that particularly in a case like Menendez, none of the information gathering that occurred in this case, none of the investigation of the sort that one would hope would affect and influence perhaps the Senate or maybe even the voters of New Jersey, could have occurred without criminal process and criminal prosecution.

So the idea that we have these other mechanisms to use instead of criminal prosecutions, I think, is illusory, except to the extent that people commit their corrupt acts in the open, or we have fantastic local journalism of the sort that's dying out that would bring activities to light.

Eric Columbus: That's, yeah, that's an excellent point in that the voters would not have the information upon which to reject Menendez if not for this prosecution.

Quinta Jurecic: I should also make the point that just more New Jersey politics that the governor and the state legislature just pushed through an extremely unpopular law essentially killing the open records system for public access to state records in New Jersey, which is further limits the ability to access, the kind of material you'd want here.

Obviously, Menendez is a federal official, but some of the allegations in the indictment do pertain to him attempting to put pressure on the New Jersey Attorney General. So to the extent that is an avenue, that is now perhaps also closed off.

Dan Richman: Yeah, I don't want to be mean, but it was part of the voir dire that the Southern District of New York prospective jurors were asked whether they thought that people from New Jersey were more corrupt, or something of that sort. I'm just saying.

Eric Columbus: And they can't pump their own gas, apparently.

Quinta Jurecic: It's true. It's true. I'm so glad that we got to the part where we just make fun of New Jersey, because that was really what I was looking forward to. But I'm surprised it took this long. And I'm dead serious about that by the way.

I do want to make sure that we touch on a couple other things. The first one has to do with the role of the Foreign Agents Registration Act. So at least as far as Molly and I could tell, it appears that this is the first time that a sitting member of Congress has been charged in connection with FARA, which requires agents of foreign countries or political parties, and so on, to register with the Justice Department if they're trying to influence U.S. policymaking. Menendez is not himself charged with violating FARA, but with violating a companion statute and with conspiracy to violate FARA, which might have the beneficial effect to prosecutors of Presenting a lower bar in terms of what they have to prove, which is particularly good because the government has had bad luck with FARA cases recently.

So I'm curious what both of you make of that, both on Dan, maybe, the sort of aspect of proving these cases, and Eric, the way that the Justice Department is attempting to apply FARA, perhaps for the first time, to a sitting member of Congress.

Dan Richman: Okay, I want to check, but isn't count 16 a substantive 219 charge against Menendez?

Molly Reynolds: Count 16 is a substantive charge. It's a charge under the companion statute that prevents him as a public official from acting as a foreign agent, period. Not just for violating original FARA; for not registering his activities.

Dan Richman: I would think both as a penalty. I would think for cleanliness 219, charging just a public official for acting as an agent just makes so much more sense than getting mixed up in the niceties of the FARA statute per se, from Title 22. So I wouldn't put that down to some proof or prudential problem as much as just the ability to charge the most straightforward violation. So your question: It does. We're told it's unprecedented.

That's certainly what Menendez said. I'm sure if the government could find precedence, it would have responded that this wasn't unprecedented. So yeah, I do think we’ll be seeing more 219. Obviously, the Representative Cuellar has been charged with a similar offense. The 219 possibilities came to the attention of many in the wake of special counsel Muller's activities.

But even before Muller was on the scene in 2016, you had representatives from the House pushing the Inspector General's Office of Justice to look into the failure to pursue FARA cases. And a report came out in 2016, even before Mueller was on the scene, saying there really ought to be a comprehensive Justice Department strategy that includes the use of criminal charges in this area.

And I think we're seeing the fruits of that. Refocusing on the criminal possibilities of FARA. And I think, to some extent, it seems a little, it once might've seemed obscure to reach for FARA in a case like this, but the more and more the corruption statutes get twisted in various ways by the Supreme Court, the more I think there's an attraction to FARA in a case like this, where, the Honest Services Statute, Hobbs Act, 666, 201, are all very generic when they're talking about public officials and very generic in terms of who the corrupt transaction is. Wouldn't it be nice to have perhaps a special standard because of the grave concerns where you're dealing with a high government official and it's a foreign power?

The ability to bring FARA in conjunction with standard bribery charges I think allows the government --- you could say to some extent, I don't want to call it a safety net because FARA hasn't been used very much and can't be considered a safety net since there's a lot more doctrinal work to be done --- but it really provides some vehicle for the government to say, this case is different. This involves a foreign power trying to, at least as the allegations go, buy a senator. And that needs to be fully captured in the proof. Even as Eric has been nicely explaining, it will run into speech and debate clause issues.

But I suspect we'll be seeing more of this, and that's really regrettable that the facts are increasingly there to allow the use of it. Is it a fair point when you have the argument this will criminalize all sorts of situations where congressmen act in support of foreign powers? And there's this risk that if they speak in favor, if they do work in favor of a foreign power, they'll be improperly tagged with being agents of the foreign power.

And the answer to that is, criminal cases are complicated. And in every case where somebody is charged with conspiring, there's a possibility that what they were doing has nothing to do with coordinated action with others was independent, then maybe they're innocent. And I think senators should have the ability to try and show that too.

But I'm really not worried, at least yet, about the over prosecution of senators in, on the facts in the Cuellar and Menendez cases.

Quinta Jurecic: Yeah, Eric, anything you'd like to add to that one?

Eric Columbus: The only thing I have to add is that based on its recent efforts, DOJ must be Ryan O'Neal the way they turned on that FARA Fawcett.

Quinta Jurecic: I will show my age and say that when you suggested that joke before we started recording, I did have to Google it. I want to close with one more somewhat serious question, which is about the Classified Information Procedures Act. The statute that sort of provides for processes for handling classified information over the course of the criminal process, Dan, when you and I had spoken about this case back in the fall, one of the issues that we'd talked about is Why isn't there any classified information referenced in the indictment?

What does that tell us? Perhaps that DOJ is trying to steer clear of that. And looking at the docket now, it seems like there has been some of this material floating around. You can see on the docket entries there have been all these CIPA hearings that are listed. There are lots and lots of documents that are listed as being filed under seal with no more information.

But there, there's one order from the judge essentially saying that there's some CIPA material that he's decided should not be introduced, and so we're not concerned about that. That concerns what seems to be some kind of a cable from the State Department. We haven't really seen any evidence of any of this material actually making its way into the trial so far.

So Dan, I don't want to ask you to, speculate on stuff that we don't know anything about, but just given the sort of contours of the case, the fact that it involves, foreign affairs, what kinds of things would you expect might be at issue here?

Dan Richman: Yeah, the case not only involves foreign affairs, but at least as alleged in the indictment, it involves Egyptian intelligence officials.

And frankly if our intelligence services aren't monitoring what the Egyptian intelligence services are doing, I want my money back because that's their job. So the idea that there are intercepts involving, at the very least, Egyptian officials discussing something about relating to this case seems, to me, highly likely.

So where do you go from there? I suspect, and here I'm just speculating on the basis of absence, I suspect the government has made a real effort to not base its case on those intercepts. I suspect that to the extent there is CIPA activity, as you suggest, it's more likely to be relating to disclosures the government made as part of its Brady obligations, broadly understood that they felt required them to disclose classified information or something connected to classified information. And that's what the litigation is about. But as you suggest, I got no idea. And I can only guess that the government wouldn't want to bring a case --- both because it's hard as a matter of proof, and it's complicated politically --- that rested on intelligence intercepts by the United States.

So they're moving forward, and it's just this disclosure piece that might be generating some of the back and forth that we see traces of in the motion practice.

Quinta Jurecic: There is a ton that we have not even touched on in this case. We didn't even talk about Menendez throwing his wife under the bus while she is undergoing treatment for cancer.

We could have gone on and on about the gold bars, but we did not. But the trial is still ongoing. So, who knows listeners, maybe we'll be back to you soon. Dan and Eric, thank you so much for joining us.

Eric Columbus: Thanks for having me. Thanks, Quinta. Thanks, Molly.

Quinta Jurecic: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter Through our website,, you'll also get access to special events and other content available only to our supporters.

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Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Molly Reynolds is a senior fellow in Governance Studies at the Brookings Institution. She studies Congress, with an emphasis on how congressional rules and procedure affect domestic policy outcomes.
Eric Columbus served as special litigation counsel at the U.S. House of Representatives’ Office of General Counsel from 2020 to 2023. During the Obama administration, he served in political appointments at the Department of Justice and the Department of Homeland Security.
Daniel Richman is the Paul J. Kellner Professor of Law at Columbia Law School.
Jen Patja is the editor and producer of the Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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