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With Menendez Trial, Is It Location, Location, Location?

Is DOJ trying to "un-Stevens" itself with its choice of venue in the Menendez prosecution? (Tom Williams/CQ Roll Call File Photo)

The August 2009 guilty verdict against former Rep. William J. Jefferson was a striking win for the Justice Department's Public Integrity Section following its botched prosecution of Alaska Sen. Ted Stevens. The trial venue might have been a key factor, a fact that is not lost on the attorneys gearing up for the corruption case of Sen. Robert Menendez, D-N.J.  

A federal jury in Alexandria, Va., found Jefferson guilty on 11 of 16 corruption charges, but Virginia was not his preferred venue. The Louisiana Democrat's lawyers requested the trial be moved to the District, claiming the FBI orchestrated a "change of venue" in its sting operation when a cooperating witness asked Jefferson to meet at an Arlington, Va., hotel, rather than one in D.C. "Even if the government could somehow rebut the presumption that choice of venue was based on racial considerations, this case should be transferred in the interest of justice to the District of Columbia," Jefferson's attorneys argued in their 2007 motion, which noted the black congressman who represented a New Orleans-based district was statistically more likely to be tried by a mostly white jury.  

Menendez also wants to stand trial in the Washington courthouse where Stevens was unanimously convicted on all seven counts. That conviction was subsequently overturned following revelations of prosecutorial misconduct.  

In a May 11 motion, Menendez's attorneys argued to move the case from New Jersey to D.C. They say a plurality of the witnesses named in the investigation are from Washington, and the "official acts" the senator allegedly took on behalf of Florida eye doctor Salomon Melgen almost all took place in D.C.  

Federal court rules give judges discretion to transfer cases to other districts "for the convenience of the parties and witnesses and in the interest of justice." Judges weigh several factors, including the location of the witnesses, defendants and lawyers and the effect on the defendants' business and judicial caseload.  

"The Justice Department may be trying to 'un-Stevens' itself by pleading the case differently, assigning different lawyers to it, and asking a particular judge to take a look at it, not here in the District," said Craig Engle, head of the political law group at Arent Fox and a former general counsel to the National Republican Senatorial Committee.  

“The intangible question mark would be, who is the draw?” Engle said.  

Engle and three other ethics lawyers agree it would be simpler for Menendez and his D.C.-based legal team to have the case moved to the E. Barrett Prettyman Federal Courthouse, where "the Capitol and his Senate office are no more than a five-minute walk from the courthouse," according to his lawyers.  

"That's not nothing," said Dan Schwager, who stepped down as staff director at the House Ethics Committee in 2013, joining D.C.-based firm Martin & Gitner.  

There's "no sign" the senator — up for re-election in 2018 — is going to resign prior to what is likely to be a lengthy trial, Schwager said. Being away for long stretches would mean missing roll call votes, committee hearings, caucus meetings and secure briefings.  

Holding the trial in Newark, N.J., could further interrupt congressional business if the two other senators, congressional staff members, Cabinet secretaries and executive branch officials who were mentioned in the April 1 indictment have to take part.  

"It may be exactly what they say," said Schwager, who has also worked for the DOJ and served as counsel on the Senate Ethics Committee. "There may be a lot of witnesses [defense attorneys] think will help them, who are going to be more reluctant to travel to New Jersey."  

Campaign concerns figured into Stevens' request to move his corruption trial to his home state of Alaska. His lawyers said Stevens had a right to continue his re-election campaign, which would be easier if the trial was held in Alaska. But Judge Emmet G. Sullivan was persuaded by the DOJ's concerns that the publicity "could lead to a significant potential for jury tainting."  

Menendez first won a House seat in 1992 and has won statewide election twice. That makes it statistically probable a Newark jury would include people who have voted for him, according to Peter Pullano, a managing partner at Tully Rinckey. Then again, maybe "his past supporters now feel betrayed," Pullano speculated.  

"With this case, press is intense and it will continue to be," Pullano said. Often defense attorneys will look at a formal or informal survey to gauge community attitudes, and Pullano said politicians don't always do well fighting corruption charges back home.  

Menendez could conceivably do better in D.C., where many people may only be familiar with him as a veteran lawmaker. Pre-trial publicity in both media markets could also come into play.  

Press scrutiny of both Stevens and DOJ lawyers proved intense. Roll Call's front page story on Oct. 28, 2008 , described Stevens hanging his head as the verdict was read, then exiting into a van parked at the curb, where photographers pressed their camera lenses against the tinted glass. It also recounts diminutive prosecutor Brenda Morris "celebrating as she stood on tiptoe to accept bear hugs from her colleagues."  

Menendez's trial would be a “three-ring media circus, but at least a two-and-half ring media circus in New Jersey,” said Rob Walker of Wiley Rein, a former chief counsel and staff director of the Senate and House Ethics committees.  

Stevens' corruption trial was essentially a false statement case about the “filing of false financial disclosure forms here in D.C.,” Walker said.  

It may be harder to prove the center of gravity is in D.C. for a bribery case that involves, for instance, free plane rides to and from New Jersey. The attorneys' arguments are “squarely at odds” with what the law is on venue in bribery, Walker said. But the complicated and lengthy indictment “merits close judicial review to make sure the government has appropriately determined venue here."  

Correction 9:55 a.m. A previous version of this article misattributed a quote to Schwager.  

   

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