Prosecutors may have violated the Constitution — and it could let a convicted senator walk
Federal prosecutors managed to win a conviction against former Sen. Bob Menendez (D-NJ) on one of the most dramatic and blatant corruption cases in recent U.S. history. But they may have violated the Constitution when they showed evidence to the jury, reported Politico — and it could give Menendez an opening to get a new trial, and possibly beat the charges.
Menendez, a longtime staple of New Jersey politics who already beat a completely different set of corruption charges a decade ago, was convicted of conspiracy to commit bribery, actions to benefit Egypt, and conspiracy for a public official to act as a foreign agent. Prosecutors detailed how he and his wife accepted bribes to take official actions on behalf of Egypt and Qatar, accepting hundreds of thousands from foreign officials in cash, mortgage payments, and even gold bars which he went on to hide in his house.
The problem is that, according to Politico, the jury may have had the opportunity to see material that they should not have been allowed to see.
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"In several surprise legal filings since mid-November, prosecutors from the Southern District of New York revealed they had inadvertently given the jury access to evidence a judge ruled jurors should not see," said the report. "The evidence at issue was loaded onto a laptop the jury was given during its deliberations. Prosecutors have said it’s 'vanishingly unlikely' and unreasonable to think any juror actually poured through all the documents on the laptop and came across the tainted material, which amounts to scraps of unredacted text messages amid 3,000 often lengthy documents."
However, if any of them did see these text messages, it would run afoul of the Constitution's Speech and Debate Clause, which grants members of Congress immunity for what they say during official proceedings.
This same provision was wielded by Trump's legal team to try to stop former Vice President Mike Pence from testifying to special counsel Jack Smith's team, and it is why the House GOP's desire for former Rep. Liz Cheney (R-WY) to be criminally prosecuted for her work on the House January 6 Committee will likely be impossible.
If, as Menendez's legal team is now trying to argue, the jury was tainted by seeing these materials, the judge could ultimately order a new trial for the former senator — and there's no guarantee such a trial would end with another conviction. Former federal prosecutor Jonathan Kravis told Politico, “the prosecution gift-wrapped them one here.”
However, if prosecutors manage to convince the court that this did not amount to a violation of Menendez's constitutional rights, he will be sentenced next month.