A handful of unredacted documents given to jurors has led to calls from former Sen. Bob Menendez to get a new trial. (Photo by David Dee Delgado/Getty Images)
Jurors who convicted former Sen. Bob Menendez of selling his political power for gold bars and other riches last year saw a puzzling patchwork of black bars on evidence presented to them in court, hiding details the judge deemed prejudicial or otherwise objectionable.
But when they began deliberating, the black bars disappeared on at least a dozen exhibits prosecutors loaded onto a laptop jurors could consult, exposing material that federal Judge Sidney H. Stein had ordered redacted.
So what did they see, and why does it matter?
Most of the exhibits in question contained details that defense attorneys successfully argued jurors shouldn’t see because they pertained to legislative actions Menendez took — and members of Congress cannot be arrested, sued, or otherwise held liable for their official actions under the U.S. Constitution’s speech or debate clause.
Prosecutors first revealed the problem in November, when they admitted they accidentally uploaded nine insufficiently redacted exhibits to the jury laptop — but had wiped it clean since the trial, making it impossible to tell if jurors had seen the exhibits in question. Since then, both prosecutors and defense attorneys have discovered a handful more. Defense attorneys demanded a new trial over the issue, which court observers say could torpedo the jury’s guilty-on-all-counts verdicts. Stein has yet to rule on the matter.
Prosecutors have repeatedly downplayed their goofs, arguing that jurors likely didn’t see the problematic few exhibits — amid more than 3,000 loaded on the laptop — during the roughly 13 hours they deliberated over three days in July.
Many of the improperly redacted exhibits reveal details prosecutors had deemed “very critical evidence” in their bid to show Menendez — who at the time chaired the powerful Senate Foreign Relations Committee — accepted bribes in exchange for approving military aid to Egypt.
One involves a January 2022 text exchange between Menendez and his wife, Nadine, in which the ex-senator sent her a CNN article about $2.5 billion in U.S. arms sales to Egypt. Nadine Menendez responded “WOW” and then forwarded the link to Wael Hana, the businessman who gave the couple cash, gold, and other gifts in exchange for helping him retain a lucrative monopoly on halal meat exports to Egypt, with the message: “Bob had to sign off on this.”
Stein had ordered the CNN link and “Bob had to sign off on this” message redacted, meaning jurors would have only seen Nadine Menendez reacting “WOW” to some unknown text obscured by a black bar. Instead, prosecutors uploaded the unredacted exchange and included the link, which contained the verbiage “us-arms-sales-egypt,” to the jurors’ laptops.
“While the government now tries to downplay this evidence as ‘of secondary relevance’ and ‘meaningless,’ the Unredacted Exhibits are the only evidence specifically tying Senator Menendez to an actual, consummated provision of military aid to Egypt,” Menendez’s lawyers wrote in a brief asking for a new trial.
In another text exchange, an Egyptian government official in September 2019 texted Hana: “Director office of Egyptian affairs in state department . . . told our DCM today that senator Menendize [sic] put an hold on a billion $ of usaid to Egypt before the recess !!!!”
Stein ordered that entire text message redacted. But prosecutors instead uploaded the message to jurors’ laptop with just Menendez’s misspelled name and “an hold” redacted.
“Any rational juror would readily conclude that behind the black redaction bar is Senator Menendez’s name and/or some reference to an action taken with respect to ‘a billion $ of usaid to Egypt,’” defense attorneys Adam Fee and Avi Weitzman wrote. “As a consequence, the jury was exposed to evidence of the government’s precluded theory that Senator Menendez took specific actions with respect to billions of dollars of military aid to Egypt in exchange for bribes.”
Stein also had ordered redactions on several text messages written in Arabic, but those made it to jurors’ laptop.
And he told prosecutors to redact part of a text between a Qatari national and real estate developer Fred Daibes, who gave the Menendezes gold bars and cash so the ex-senator would help him secure a multimillion-dollar investment from a Qatari royal. In that text, Daibes mentioned a car he owned he called “the Hitler car,” because of its connection to the Nazi dictator. Stein ordered the word “Hitler” to be blacked out, but defense attorneys discovered it was unredacted in the exhibits uploaded to jurors’ laptop.
“Of course, any reference by a defendant to ‘Hitler’ in evidence provided to a jury in a criminal trial is highly prejudicial,” Fee and Weitzman wrote.
Last month, prosecutors divulged additional failures in redactions on long message chains between Hana and Ahmed Helmy, an Egyptian spy; Hana and Daibes; and Hana and Nadine Menendez, who prosecutors say brokered the bribes between the ex-senator and Hana, Daibes, and co-defendant Jose Uribe.
Menendez’s attorneys said prosecutors had no direct evidence showing Menendez forged a corrupt agreement with Egypt — and couldn’t try to prove an agreement indirectly by introducing evidence of his military aid approvals since the speech and debate clause protects such legislative acts. The unredacted exhibits, consequently, filled a “major gap” in their case, they added.
“If the government is going to charge a sitting senator with engaging in a multi-year bribery scheme with a foreign nation, a rational jury would expect that there would be something to show for it,” Fee and Weitzman wrote. “But absent the Unredacted Exhibits, the government had all of nothing — precisely why it panicked when this Court excluded them in the first place.”
Most of the exhibits in question weren’t mentioned during opening or closing arguments or in trial testimony, and so would have confused — and been disregarded by — jurors, prosecutors have argued.
“The pertinent matter, in each case, appears deep in lengthy exhibits — on page 10 of a 51-page exhibit, page 66 of a 127-page exhibit, pages 72 and 166 of a 252-page exhibit, and pages 547-48 and 561-62 of a 636-page exhibit,” prosecutors wrote in a Dec. 16 letter about the unredacted message chains. “The plain reality is that the jurors obviously did not dive deeply into these unmentioned, scarcely-cited or wholly uncited documents and observe any of the excluded matter.”
But prosecutors’ mounting confessions of wrongly admitted evidence demonstrate “a pervasive pattern of constitutionally monumental mistakes” that proves Menendez’s conviction cannot stand, Menendez’s attorney argued.
“It is simply no longer tenable to defend the verdicts,” Fee and Weitzman wrote. “This episode has crossed the line from tragedy to farce. And our justice system cannot afford to become a farce. The Court must order a new trial.”
Stein last month rejected defense attorneys’ initial bid to toss the convictions — filed before prosecutors revealed their evidence error — saying the guilty verdicts were based on extensive witness testimony and evidence and were not unjust.
Last week, the judge also rejected requests by Menendez and his co-defendants to postpone their Jan. 29 sentencing. Nadine Menendez’s trial, which Stein had postponed to accommodate her cancer treatment, is set to start Feb. 5.
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