Menendez Trial: Judge Blocks Prosecution From Using Crucial Texts as Evidence
The judge cited the Constitution’s Speech or Debate Clause.
US District Judge Sidney Stein told prosecutors they could not use text messages from 2019 between an Egyptian official and Sen. Bob Menendez’s co-defendant Wael Hana (D-NJ) due to the Constitution’s Speech or Debate Clause.
The ruling also applies to the 2022 texts between Menendez’s wife Nadine and Hana when she “allegedly forwarded a link to Hana about two military sales to Egypt worth about $2.5 billion, writing, ‘Bob had to sign off on this.'”
No texts could cause problems for the government’s case against Menendez regarding Egypt and military aid. Menendez and his wife Nadine face charges of accepting bribes in exchange for those favors.
From The New York Post:
The exchanges were laid out in a superseding indictment filed by prosecutors in the Southern District of New York this past March.
On Sept. 9, 2019, authorities said, an Egyptian official messaged Hana to say he had learned that “senator [sic] Menendize [sic] put an [sic] hold on a billion $ of usaid [sic] to Egypt” and asked “Is this true?”
Hana then tried and failed to contact Nadine Menendez before reaching out to another co-defendant, real estate developer Fred Daibes. Daibes apparently got hold of the senator and relayed his response to Hana.
“Less than two minutes later,” the indictment reads, “Hana texted [the Egyptian official] writing that it was not true and ‘he’ [Menendez] did not know anything about the hold on U.S. [sic] aid to Egypt.”
Menendez served as the top Democrat on the Senate Foreign Relations Committee then.
The Speech or Debate Clause is found in Article I, Section 6, Clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The jury had heard the audio and seen other texts from the seized phones, starting in 2018 when Menendez was cleared of a bribery case.
The texts and audio detail the beginning of Nadine and Bob’s relationship.
Menendez’s defense has pointed the finger to Nadine for all the problems.
The prosecution plans to use the evidence as proof of a “burgeoning, five-year bribery conspiracy” between the senator and his wife:
The messages vividly depict Ms. Menendez as an admirer of the senator and a reliable go-between. Messages she got from Mr. Menendez were rapidly relayed to Mr. Hana — and vice versa, according to the records introduced on Tuesday.
In one case, she spoke by phone to Mr. Menendez for 12 minutes. Within two minutes of hanging up with the senator, she texted Mr. Hana: “He said he’s waiting for an answer. As soon as he gets it he will call me.”
It was unclear on Tuesday what she was waiting to hear from the senator, but she did have something to offer Mr. Hana, who had founded a halal meat certification company in New Jersey that the next year won a lucrative monopoly with the government of Egypt.
“He sent me this information about the American Embassy in Egypt,” she told Mr. Hana.
She included the number of Americans and Egyptian employees at the U.S. Embassy in Cairo.
The judge postponed Nadine’s trial due to her breast cancer diagnosis.
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Comments
It seems a lot of judges are hampering a lot of prosecutors or defense counsel, dependent upon the result desired rather than on legal grounds.
Except when it comes to the persecution of President Trump. Then a certain NY Judge can’t do enough to help the prosecution with their bullshit case.
I suspect there is a correlation between the party of the judge and the desired legal grounds.
I used to be a pessimist, now I am a realist.
“Kangaroo” Marchan made me a believer in judicial corruption.
Being affliated with the Democrat Party seems a good thing for criminal defendants.
Being a Republican, not so much.
Since the Wife was never a congresscritter, how would her texts be covered by any clauses related to the immunities of congresscritters?
It’s unbelievable. It looks as if Judge Marchan’s (ideological) twin brother has been identified sitting on the federal bench just down the street.
It doesn’t matter who she is; the texts are about his performance of his legislative duties, so they are privileged.
Also, she probably counts as a congressional aide, and they are protected.
Well that is rediculous.
His wife counts as a ‘congressional aide?’ Gonna need a citation for that one. Can you name ANY other constitutional, statutory or jurisprudential grants of immunity that extend to spouses?
Anyone who works with a congressman is an aide. It doesn’t have to be an official title. The point is that they are dealing with his actions in his capacity as a legislator. Which she was, in these texts.
Why would aides be protected? They don’t give speeches on the floor of the chambers. They don’t GIVE speeches or debate.
And, if something about his “performance of his legislative duties” is protected… then nothing ever said anywhere can ever be held against anyone even peripherally associated with Congress. Heck, I would argue it can’t even be reported on.
What you’re arguing, Milhouse, is an idiotic interpretation of the Speech and Debate Clause. It’s not even pedantic. It’s just “hmmmm, how broad can we actually make this?”
The Supreme Court extended the protection to Congressional aides in a case born from the Pentagon Paper, Gravel v. United States, 408 U.S. 606 (1972). Gravel had received a copy of the Pentagon Papers from someone at the Washington Post. It turns out, Mike Gravel was dyslexic and needed help from an aid – as he always did – to read the documents. That aid was later subpoenaed to testify in the Grand Jury. Gravel’s lawyers moved to quash that subpoena and eventually that motion was decided by the Supreme Court.
Still, it’s a GIGANTIC leap to say that when the Court extended the Speech & Debate Clause to congressional aides, that included congressional spouses.
There is no reason to distinguish employees from anyone else who works with a congressman. The point is the material, not the person. The texts in question were directly about his legislative acts; she was relaying information that she got directly from him. Therefore they are privileged and can’t be used against him.
Interesting. Texts on a cell phone (apparently sent from any location by any person which references the thoughts of a Senator or Representative) about an issue before Congress now fall within the definition of “…any Speech or Debate in either House.”
Guess it’s a good thing we aren’t going with original intent when interpreting the Constitution. Or do you think a letter written in 1802 by the wife of a Senator relating what he thinks about an issue before the Senate would have qualified as “Speech or Debate in the Senate” as far as the Founders were concerned?
If it were being introduced as evidence against him, I think it’s quite plausible that they would have said it did.
So, texting your wife is now part of “any Speech or Debate in either House”?!
Holy penumbras, Constitution Man!
Just how corrupt is this judge?
The Emanations are playing 6 Degrees of Kevin Bacon.
Yes, it is absolutely part of speech and debate. It’s a communication about his performing his legislative functions, so it’s privileged, just like committee meetings, reports, discussions of how he will vote on something, etc.
How the heck do you even come up with that bullcarp, Milhouse? The clause says “and for any Speech or Debate in either House, they shall not be questioned in any other Place.” It needs to be actual speech or debate, not some exterior discussion of it.
The courts have been very clear that you are wrong.
Texting anyone about your legislative acts is part of your legislative acts.
At least one text was between the wife and an Egyptian.
It doesn’t matter who it was between. The point is the content of the text, not the addressee. She was reporting on his legislative acts.
“… text messages from 2019 between an Egyptian official and Sen. Bob Menendez’s co-defendant Wael Hana (D-NJ)” as well as text messages between Hana and Mrs Menendez aren’t text messages to or from Menendez.
So how can the Speech or Debate Clause apply to them?
What Hana and Menedez did with them after that might be protected, but the originals aren’t.
It doesn’t matter who they’re to or from; they’re part of a discussion with him about an exercise of his legislative duties, so they’re privileged and can’t be used against him. It’s the substance of the text that’s privileged, not the sender or recipient.
Of course it matters. The texts in question were between an Egyptian official and Wael Hana. Menendez had nothing to do with them at that point.
Given your theory this post is privileged.
In any case: “While the Speech or Debate Clause recognizes speech, voting and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.”
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The texts are directly related to his exercise of legislative action. Therefore they can’t be used against him.
Our conversation couldn’t be used against him anyway, because it’s not evidence of anything. But if one of us was in contact with him and was reporting on his legislative actions then this conversation would indeed be privileged and could not be used against him.
Read your quote again. Legislative aides have the same privilege as legislators themselves. Of course they are not privileged to violate an otherwise valid criminal law; but they are privileged in any exchange or material that is part of their legislative duties, and they cannot be held to account for those. And that is exactly what these prosecutors tried to get away with.
Bottom line: Menendez is not privileged to accept bribes, because that is not part of his job. But voting is part of his job, so he can’t be prosecuted for how he voted even if the state can prove that he was paid to vote that way. Likewise putting holds on measures, or signing off on them, is part of his job, so any discussion about his doing or not doing these things cannot be used against him. The fact that he isn’t a direct participant in the exchange changes nothing.
Then bribery can never be a crime, since the act for which the money is paid can never be entered as evidence against the perp.
Thanks for analysing away most of the law, Milhouse.
You might think so, and yet dozens of congressmen have been convicted of bribery, despite the fact that the act paid for could indeed not be entered as evidence against them. This has been the law for nearly 250 years.
Bill Cosby should update his classic “Toss of The Coin” bit to include Democrats and Republicans.
“British call heads. It’s tails. What do you do, settlers? Settlers say that during the war they will wear any color clothes that they want to, shoot from behind the rocks and trees and everywhere. Says your team must wear red and march in a straight line.”
Huh, thought under our LAWS judges were disallowed to shill for the defense or prosecution, yet just like Merchan did with his asinine and unlawful hour-long jury instructions, which they did not get a copy to reference. This bum rigged the jury instructions to overwhelmingly favor the DA that PDJT can never gain a proper acquittal…a 4/4/4 split, according to Merchan is the same as “unanimous” …musta graduated from CommonCore College. May God strike these evil bums down.
Jurors never get a copy of the jury instructions, nor do they get transcripts of testimony or of the lawyers’ speeches.
And I fail to see how this is relevant to the topic here.
Not according to Missouri AG Andrew Bailey: “I’ve tried many jury trials in my day. You give jurors paper instructions every time. “
Maybe in Missouri. Definitely not in NY, and probably not in NJ either.
I was on a criminal trial jury and all 12 of us received a copy of the jury instructions. In your zeal to be a simp, you’ve proven yourself wanting, O Pendantic One.
Same. I’ve (unbelievably) served on three jury trials in three separate states (one military jury, one federal jury and one state jury) and received a copy of the written jury instructions in all three instances…and in all those cases, the jury instructions from the judges took less than 15-minutes. Marchan’s took more than an hour. Most of other published guidance for the Federal Circuits recommends or instructs lower courts to send a copy of the instructions with the jurors to the jury room.
If jury instructions take more than 15 minutes the judge ran a crap trial and he is arguing someone’s case for them.
In which state? I was on a jury in NY, and we did not get the instructions in writing. All we got was the questionnaire that we had to answer.
We asked for transcripts and were told we could not have them, we could only ask for them to be read back to us.
I’ve heard that in some states jurors are allowed to take notes. In NY they are not.
I’ve tried dozens of criminal cases, both as a prosecutor and defense counsel. Jurors ALWAYS get a copy of the jury instructions; indeed, if they have questions, as they often do, they are usually referred back to those instructions for the answers.
Sorry, Milhouse, you’re wrong on this one.
Milhouse, I usually enjoy your sparring with others but this time you just blew it! Are you going to admit you’re wrong?
I’m happy to admit it when I’m wrong, but in this case I’m not wrong. I don’t know what happens in other states, but in NY jurors do not get the instructions in writing, or anything but the questionnaire they have to answer, and any evidence they request.
Camperfixer: hour-long jury instructions, which they did not get a copy to reference
In New York, the judge’s verbal jury instructions are the actual jury instructions, not the written copy. In New York, the jury cannot be provided a copy of the jury instructions without consent of the parties. That’s because the jury instructions include “copies of the text of any statute”. See New York Criminal Procedure Law § 310.30.
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Come on, man. He had to get his old, amazonian, worn-out, biker-moll, street-meat wife a used Mercedes.
People, have you no sense of romance?
Hey, it was a lightly used Mercedes….unlike Mrs. Menendez, I suspect.
That seems like an extraordinarily expansive view of the ‘speech and debate’ clause to me. Text message being equated to actual speech on the floor or legislative functions on the floor is way too much leeway IMO.
Especially text messages which were neither to nor from Menendez in the first place.
On the contrary, it’s a completely standard view, not expansive at all.
Hana asked Mrs Menendez a question about the senator’s exercise of his function as a legislator; had he put a hold on the measure. She communicated with him and replied that he hadn’t. How can that not be privileged? How can it be used against him, when it is entirely about his act (or lack thereof) as a legislator.
Likewise the other text. Mrs Menendez passed on a report of measures that had passed, and said “Bob had to sign off on this”. How is that not a discussion about his exercise of his legislative function? And therefore how can the court hold him accountable for it?
This is pretty basic stuff; a member cannot be held accountable for anything he does in his capacity as a legislator. He can only be held accountable for things he does outside that capacity. Taking a bribe is not part of his legislative job, so he can be held accountable for it. But voting as he was allegedly paid to do is part of his job, and therefore he can’t be held accountable for it. The same thing for putting or not putting holds on legislative measures, or for signing or not signing them.
IMO this view is wrong. Speech and debate is very straightforward in the context of the privilege; it and every other legislative privilege, is centered upon interfering with the ability of a member of Congress to perform their duties. As an example, travel to DC, heck travel within DC to the floor to cast a vote, attend a hearing is privileged. So is speech in the hearing and on the floor made in public. Backroom deals, lobbing, selling favors or votes out of public view are not IMO privileged by the Speech and Debate clause despite, as you point out, that view being more widely accepted at present than my own.
Signing off on measures, or refusing to do so (i.e. blocking them) is a legislative act. Therefore it is protected. Negotiations about such acts, whether in public or private, are inherently part of the acts and are also protected. The only things not protected are acts that form no part of a legislator’s duties, such as soliciting or accepting payment for those protected acts. That is how they can be charged with bribery in the first place; the bribe is not a legislative act. But the acts themselves remain privileged. A legislator can never be charged with voting as he was paid to do, only for accepting the payment.
menendez is the gold standard for lefty corruption
Not even close. They’re rank amateurs compared to the Clintons and Bidens.
I think he meant to say amongst those that are facing prosecution. But yes, they hold no candle…..
If the two were being tried together would the judge still exclude the texts? Would they be admissible in her trial?
I think they would certainly be excluded as to him. I don’t know whether they could be included as to her. From the fact that congressional aides are covered, my guess is that she’d be covered by the same principle, since she was speaking for him, relaying information from him.