Halfway through Sen. Robert Menendez’s corruption trial, defense attorneys soon need to decide if the New Jersey Democrat and accused bribe-taker is going to testify in his own defense.
Attorneys in other high-profile public corruption cases say this decision is highly fact-dependent, and it’s unclear what Menendez’s team will decide.
“Only the lawyer on the front line, steeped in the facts can advise a client at that crucial juncture of trial,” said Brendan Sullivan, an attorney for former Sen. Ted Stevens, R-Alaska, who was convicted of making false statements about home repairs and then exonerated due to prosecutorial misconduct.
Abbe Lowell, leading Menendez’s legal defense, said last week the senator may testify while arguing jurors need to understand the scandal’s full context, including claims that Menendez and co-defendant Salomon Melgen visited prostitutes in the Dominican Republic.
The prostitution claims were never proven, but initial reporting spurred Menendez to repay Melgen for two previously undisclosed private jet flights costing nearly $70,000 and triggered a federal probe that uncovered more flights and other exchanges of gifts and favors.
Whether Menendez testifies will be guided by “the senator’s personal desire and his lawyer’s advice,” said Henry Asbill, an attorney for former Gov. Bob McDonnell, R-Va., who was convicted of bribery for accepting gifts from a donor before winning a major Supreme Court ruling limiting the meaning of official acts.
“Every case is different,” said Robert Trout, a defense attorney for former Rep. William Jefferson, D-La., convicted of bribery after authorities found $90,000 in cash in his freezer.
“I haven’t followed the trial, and don’t know the client,” he added. “[It] wouldn’t be appropriate for me even to speculate about this.”
Lowell suggested Menendez may testify while arguing that context was necessary for jurors shown a 2013 interview. Prosecutors redacted references to prostitution, which Menendez called smears, and U.S. District Judge William Walls agreed to allow the redactions.
“There’s no chance that this case can be completed, if it gets past the government’s case, without the ability of people, and potentially the senator himself” to explain the “full context,” Lowell said.
Lowell did not immediately respond to a request for comment on whether he intends to have Menendez testify at the trial, which is scheduled to conclude in late November. Menendez and Melgen claim they are good friends, not conspirators.
Barbara McQuade, a former U.S. attorney who teaches at the University of Michigan’s law school, said defense attorneys generally decide if they should call their client after prosecutors rest their case.
“Juries often want to hear from the defendant,” she said. “[But] testifying in your own defense creates some significant risk. If the defendant has ever made contradictory statements about subject matters within the scope of the trial, they may be used to impeach his credibility. There may be some very harmful facts that have come out during the trial that he may have to answer for. If he appears argumentative or evasive while on the stand, that could harm him in the eyes of the jury.”
McQuade said once the prosecution rests, attorneys generally make a risk assessment.
“At that point, they can decide whether they think they have a good chance of acquittal just by arguing that the prosecution has failed to make its case,” she said. “If, on the other hand, the defense has a very real concern that the prosecution has proved the defendant’s guilt, then the defendant may take the risk of testifying despite all of the potential downsides.”
The Justice Department alleges that Menendez received free flights, a hotel room in Paris and significant campaign donations in exchange helping with visas for Melgen’s foreign girlfriends, intervening in a Medicare billing dispute and advocating for Melgen’s interest in a Dominican Republic port contract.
Commerce Department staffer Sam Smith testified Monday that an attorney for Melgen, who wanted assistance enforcing the port contract, “constantly brought up the fact that he could make trouble for the department and he could be a bull in the Commerce Dept.’s china shop,” citing “politically influential friends” including Menendez.
Melgen, a Florida ophthalmologist with other business interests, was convicted in April of fraud for overbilling Medicare by as much as $105 million.
