By Benjamin Weiser and Tracey Tully
Sen. Bob Menendez of New Jersey and his wife, Nadine Menendez, were both charged in the fall in a broad federal corruption case in which they were accused of accepting cash and gold bribes.
Now their marriage itself is the centerpiece of a new legal argument.
Both Menendezes are seeking to split their case and have separate trials, according to papers that each of their lawyers filed late Monday.
In her request to a federal judge, Nadine Menendez said she understood that the senator might decide to testify at their trial, which is set to start in May in New York. “His testimony,” her lawyers wrote, “could include revealing confidential marital communications with Ms. Menendez that Senator Menendez deems essential and material to his defense.”
Husbands and wives cannot typically be forced to testify against each other. And Nadine Menendez wants to maintain the confidentiality of her communications with her husband, her lawyers wrote to the judge, Sidney Stein, of U.S. District Court.
The senator’s lawyers, in a brief filed several hours later, made a similar argument.
A joint trial would “force Senator Menendez to make an impossible and prejudicial choice between testifying on his own behalf and exercising his spousal privilege to avoid being converted through cross-examination into a witness against his spouse,” they wrote in the new legal filing.
The unusual request comes after Bob Menendez, a Democrat, took to the floor of the Senate a week ago to offer an aggressive rebuttal to the charges against him. He, his wife and a New Jersey businessman, Wael Hana, have all been accused of participating in a conspiracy to exchange political favors for gold bars; to have Bob Menendez act as an unregistered agent of Egypt; to take bribes to help the government of Qatar; and to try to block criminal investigations of allies in New Jersey.
“I am innocent,” Bob Menendez said in the Senate, “and I intend to prove my innocence.”
His lawyers filed a brief the next day, on Jan. 10, asking that Menendez’s charges be dismissed altogether, arguing that overzealous prosecutors were criminalizing normal legislative activity and violating the constitutional protections afforded to members of Congress.
Menendez’s lawyer, Avi Weitzman, continued Monday to try to poke holes in the government’s case, calling it a “leaky, sinking ship.”
The legal brief also argues that the case was filed in September in the wrong jurisdiction and should be moved to New Jersey.
“If there’s a trial of this case — and there should be none — it should be a solo trial of the senator, in New Jersey, where all the key events alleged in this case took place,” Weitzman said in a statement.
The U.S. attorney’s office for the Southern District of New York will have an opportunity to respond to the defense’s arguments when it files its legal briefs, which are due by Feb. 5.
Nicholas Biase, a spokesperson for the U.S. attorney’s office, declined to comment Monday.
The Menendezes and Hana have all pleaded not guilty, as have two other New Jersey businessmen who are charged with giving the couple bribes in exchange for political favors.
Stephen Gillers, a legal ethics professor at New York University School of Law, said that prosecutors and courts often strenuously objected to severing cases.
“Prosecutors and courts hate trying the same case twice,” Gillers said. “They’ll look for any way to protect the rights of both defendants in a single trial.”
In most cases, Gillers said, that can be done through an instruction to the jury that it consider certain testimony only in regards to the senator, for example, and not against Nadine Menendez.
“The jury takes an oath to honor those limiting instructions,” he added.
The senator married Nadine Menendez, his second wife, in 2020 after a whirlwind romance. She is central to the bribery conspiracy, according to prosecutors, who outlined the charges in three successive indictments.
The couple met years before in New Jersey, where they both lived, friends and former acquaintances have said. But they began dating in early 2018, soon after the conclusion of an earlier federal corruption trial of Bob Menendez, which took place in New Jersey and ended in a hung jury in November 2017. Federal prosecutors there declined to retry the senator after a judge threw out the most serious charges.
The Menendezes live in the split-level home in Englewood Cliffs, New Jersey, where she raised her two children, who are now adults. In searches of the house and a safe deposit box, investigators seized more than $550,000 in cash, 13 gold bars and a Mercedes-Benz.
Prosecutors claim that the car and much of the cash and gold were bribes given to the couple by Hana and the other two businessmen.
Nadine Menendez and Hana, a U.S. citizen born in Egypt, had been friends for years and socialized regularly at restaurants and bars in North Jersey.
Soon after Nadine Menendez and the senator started dating, she and Hana began setting up meetings with Egyptian officials, prosecutors said. At the time, Bob Menendez was chair of the Senate Foreign Relations Committee. (He stepped down from the position, as required, after he was charged in the bribery conspiracy.)
In 2019, Hana began operating a halal meat company in New Jersey. Within months, the Egyptian government had given the company, IS EG Halal, the sole right to certify that meat imported from the United States had been prepared according to Islamic law; until then, at least four companies had divided up the work. In early 2020, IS EG Halal won a worldwide monopoly, becoming the only company authorized to certify that halal meat imported to Egypt from any other country had been properly prepared.
Many of the alleged bribes — mortgage payments on the Englewood Cliffs home, a low- or no-show job and a new Mercedes — were given to Nadine Menendez, according to prosecutors. Nadine Menendez had also set up a consulting company that prosecutors said was used to funnel bribes, making her central to the case against Bob Menendez.