4 questions that could determine Bob Menendez’s legal – and political – fate

New York (CNN) — The slow-burning corruption trial of New Jersey Sen. Bob Menendez is poised to reach a combustible new phase this week as prosecutors and defense lawyers test the boundaries of the court, the law and the federal judge running the show.

US District Court Judge Sidney Stein, whose gentle speaking style belies his firm grip on the proceedings, has increasingly been faced with decisions about what evidence can and cannot be introduced – or even discussed – by the prosecution. The defense, too, has at times tested his patience with its questioning of witnesses and tactical objections.

Nearly two weeks after a jury was selected and seated in Manhattan federal court, the question of Menendez’s guilt or innocence, and that of his two co-defendants, appears to hinge on how Stein interprets the protections Menendez enjoys as a sitting US senator. Prosecutors have promised clear evidence that the New Jersey Democrat accepted bribes and acted, as stated in the indictment, as an agent for the Egyptian government. Menendez and his co-defendants have pleaded not guilty.

But even as the prosecution continues to lay the groundwork in this complex, sprawling case, defense lawyers – particularly those representing Menendez – are carefully seeking to zero out anecdotes, documents and other details that they say are impermissible in cases of alleged corruption by public officials.

Here are four questions expected to dominate the courtroom – and a congressional race on the other side of the Hudson River – over the coming week.

Can prosecutors thread the (constitutional) needle?

Prosecutors from the Southern District of New York are fighting a legal battle on two fronts.

On one side, the government is being hit by the US Constitution’s “speech or debate” clause, a provision designed to shield lawmakers from having their congressional work used against them in a courtroom.

On the other, prosecutors are also contending with a more recent precedent, from 2016, when the Supreme Court’s decision in McDonnell v. United States raised the bar for prosecutors trying to prove corruption charges against elected political leaders.

This effectively means that some of the most potentially incriminating evidence against Menendez cannot be displayed or spoken of, at least not directly, in front of a jury.

Neither side in the case was taken by surprise here. Menendez’s defense is making clear use of both, while prosecutors have argued, broadly and in the back-and-forth over evidence, that their case is so strong as to be invulnerable to these challenges.

Menendez is particularly well-drilled in some of these dynamics, having argued in 2017 that his previous corruption trial should be thrown out owing to protections he derived through the speech or debate clause. The Supreme Court rejected that bid, but his lawyers in this case (the previous one ended in a mistrial) are aggressively invoking the precedent to stifle prosecutors.

The government’s ability to sketch a clear and convincing picture for the jury despite these growing constraints will likely determine Menendez’s legal fate.

Will Menendez take the stand?

The odds are long, yes, but it’s not implausible.

There is nothing yet to suggest that Menendez or his defense team is planning to make the high-risk, high-reward move – one that former President Donald Trump, on trial up the street in Manhattan Criminal Court, rejected before moving on to closing arguments.

But the possibility is not as remote as many observers might expect – leaving the potential for another twist in this already sensational case.

That potential has more to do with the makeup of the jury than how the case is unfolding in the courtroom. Specifically, it’s the fact that most of the jurors are college-educated, with more than half holding graduate or postgraduate degrees. Their professions reflect as much – a banker, therapist and artist-turned-business owner among them.

Many prosecutors believe – as a rule of thumb – that the more formally educated and professionally accomplished the jury, the more inclined it will be to hear directly from a defendant, especially if that person comes to court with a high profile or political power.

It’s unclear if this group of prosecutors takes that view – or, of course, whether the jury would give Menendez credit for taking the oath.

What will the jury make of the Blame (Nadine) Game?

The defense kicked off its case by pointing the finger at Nadine Menendez, the senator’s wife, who is facing a separate but related trial this summer. She has also pleaded not guilty.

As the senator’s lawyer told it, Nadine Menendez was keeping secrets – occasionally in the form of gold bars stored her bedroom closet – from her husband, while generally taking advantage of his power and cache to enrich the pair.

“She kept things from him,” lawyer Avi Weitzman told the jury. “She kept him in the dark.”

The prosecution, in its opening statement, told a different story. Assistant US Attorney Lara Pomerantz said that the senator used “his wife as a go-between” with his co-defendants and foreign agents.

“(She) communicated with the bribe payers, she passed messages to Menendez, and she collected some of the bribes,” Pomerantz said. “All in exchange for Menendez’s promises to use his power as a senator.”

Was Nadine Menendez a bit player who aided her husband in crimes that benefitted them both, as the prosecution insists – or was she, as the defense argues, something more like a mastermind? The jury’s answer to that question could decide the case.

How does it play back home?

Weeks before the jury in Lower Manhattan renders their verdict on Menendez, voters in North Jersey’s 8th Congressional District will have a say on his family’s political standing.

Menendez himself is not running for reelection in the Democratic primary on June 4, but his son, freshman Rep. Rob Menendez Jr., is on the ballot and facing a serious challenge from Hoboken Mayor Ravi Bhalla.

Menendez Jr. was first elected to the seat in 2022 following the retirement of Democrat Albio Sires, who succeeded Bob Menendez in an earlier version of the seat in 2006 when the latter was appointed to the Senate.

Though Bhalla has not argued outright that his opponent is corrupt or should be held accountable for his father’s alleged crimes, some of the outside groups supporting him certainly are.

“They say the apple doesn’t fall far from the tree, so it’s no wonder that Rob Menendez is defending his father’s corruption,” said one TV ad from America’s Promise, a super PAC backing Bhalla. “Jersey has enough bad apples. Rob Menendez – rotten to the core.”

Menendez Jr. directly addressed that line of attack in a recent spot of his own.

“My opponent wants to run against my father because he’s scared to run against me. That’s on him,” Menendez Jr. says, speaking straight to camera. “I’m focused on fighting for you.”

The recent backlash against Garden State Democrats’ uniquely powerful political machine has also played a significant role in the campaign, perhaps even more than the comings and goings of the trial. But for Menendez, the senator and father, the will of the 8th District’s primary voters could weigh heavily on his political future – and legacy.

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