This week on q a, a professor and former federal prosecutor randall allies and who writes a blog called sidebars talks about the federal Corruption Case against u. S. Senator bob menendez new jersey. Eliasson, before i ask us about this case, give some background about how you got into the business of the law and the relationship between the federal prosecutor and somebody in politics . i came to washington for my first job at a private law firm. I worked there as a federal prosecutor for 12 years. Both of the time in that office i was in what they call the public corruption and government fraud section. I was focusing on cases involving public corruption and fraud against the government, both medical both federal and local officials. By the time i left, i was serving as the chief of that section. I was supervising the attorneys focusing on those cases. I left the office in 2000 want to help test so i could start teaching and writing on a parttime basis. Teaching whitecollar criminal law at the George Washington criminal law school here in washington dc. I thought it at american university. I got my law degree from Harvard Law School in 1985. Even before i went to law school and knew that what i wanted to do was be a trial lawyer. Waygured out that the best to get trial experience was to be a im a prosecutor or a defense attorney. Private civil litigation does not get you into court that much. I knew i wanted to be in court all the time. When i was at the private law firm here in town, there were eight number of former assistant u. S. Attorneys working at that form firm talking about the job as the best job they have ever had. After hearing that from a few different people, i decided to give that a try. Who does the u. S. Attorney work for and how do they get their jobs . Whats they are appointed by the president. Each one has a u. S. Attorney in charge of the prosecutions and federal civil cases. There is a u. S. Attorney for each district that is appointed by the president and as part of the department of justice. Does the u. S. Assistant have to be approved by the senate . They are hired by the u. S. Become careerhey employees of the department. Who is the boss of the u. S. Attorney . More immediately, it is the attorney general. The head of the department of justice. There are different steps allow that. There is an executive office of u. S. Attorneys within the department of justice because the department of justice is huge organization with many components. Brian what is the highest profile case you were involved in as a prosecutor . Randall probably the highest i was involved in was the prosecution of dan rostenkowski, the congressman from illionois illinois back in he late 1990s. He was prosecuted for a series of schemes where he was stealing funds from different Government Programs and using them for his personal use. That happened in d. C. He was indicted and what to jail. Brian he is deceased, but we have a video after he was indicted so everyone can remember what he looked like in some way. [begin video clip] today, i pled not guilty to each of the charges before me. I entered these pleas because i am not guilty. I will fight these false charges and will prevail. I will wash away the mud that has been splattered upon my reputation. Some ask, how could you have done these things . The answer is simple. I didnt do them. [end video clip] brian he was the former chairman of the ways and means committee, enormously well liked by republicans and democrats. When you hear him recount that statement about not being guilty, what is your reaction . Randall it is par for the course, common for someone indicted to say they are innocent and they will fight the charges. It doesnt indicate to me that it is anything out of the ordinary. Sort of what you would expect a politician or most highprofile criminals will initially come out and deny the charges, and then it will go from there. Brian he had a lot of power. When you are watching the process, anything about it surprise you that you did not expect . How hard was it to convict him . Randall nothing in particular. One thing notable about the case i was a very junior person, not the lead prosecutor, i was part of the team one thing that was notable was the lack of any perception of political influence in the investigation. In other words, the investigations was began under a republican administration, that after the election, it switched to the Clinton Administration and rostenkowski was a prominent democrat and an important player in Clintons Campaign to get health care passed. There were rumblings that now that clinton was elected, this prosecution would be stifled by the clinton Justice Department. There is not an inkling of this. The case proceeded just as it had been and there was no hint at all within our office that we should do anything differently because there was a Democratic Administration in power. Brian he went to prison for a year and a half . Randall i think it was 17 months. Brian what is your opinion this is a bad way to ask it. How corrupt our politicians from your perspective . You have watched what is going on in this town. You teach white collar crime. Randall i dont think these are the norm by any means. There is a real tension in our system, since we have the system of privately financed campaigns and politicians have a need to raise money and the right to raise money and to fund their campaign, there is a tension between the goal of having politicians who are only working to serve the Public Interest and serve their constituents, and i kind of push and need to raise money, and that can lead to a lot of dangers of corruption. But i dont think like things with the rostenkowski case are the norm. Or the allegations in the menendez case. Brian would you have been able to convict rostenkowski back then if the Supreme Court had already decided the mcdonald decision . Randall i dont think it would have been a factor because it was not primarily a bribery case. Mcdonald deals with the bribery statute. And what the government has to prove in a bribery case. Brian let me clarify, Robert Mcdonnell was the governor of the state of virginia and it went on for a long time. He was convicted of bribery . Randall yes, basically. Brian and the Supreme Court decided, you remember the number . Randall 90. It was unanimous. Brian what was your reaction when they threw it out . Randall i was surprised. They made the wrong decision. The governor, who accepted a the governor, who accepted a series of valuable gifts over time from his is this man, Johnny Williams, who wanted their help in promoting his product within the virginia government. He made a product and he wanted to make virginia universities to do Research Studies and promote his product within the government so it could get fda approval and be a successful product for him. Over a series of a couple years, he gave the mcdonnells things like 10,000 or so in gowns for mrs. Mcdonnell he purchased in new york city. He paid for the caterer at his daughters wedding, 50,000, gave the governor a rolex watch. The biggest thing was 120,000 in loans. No interest, no paperwork, no documentation, just basically gifts of money that total about 120,000. Not sure if they would be called loans if they did not come to light. In exchange, he hoped the governor would help about this product. To promote this product within the government. And the governor did, he arranged meetings and made phone calls. He had a Product Launch event at the governors mansion. The jury found that was a bribe, a quid pro quo, for the gift, the governor was exploding his exploiting his office. These were secret gifts, which was an important factor in a lot of these cases. These were not public the disclosed Campaign Contributions where people can see where this is coming from. These are secret gifts so there is no way to judge whether the governor is acting in the best interest of his constituents or the man that was paying him. The jury found a bribery scheme and the judge agreed, the court of appeals unanimously agreed and unanimously declined to rehear the case with the entire court. Then it went to the Supreme Court and they unanimously reversed. It was a very lawyerly opinion and every sense of the word. It focused on what is an official act . Quote, unquote, and it spends a lot of time parsing this statutory language and concluding, based on this precise definition in the statute, things Bob Mcdonnell did did not amount to official acts. To me, that is missing the forest for the treat, the single tree of what was an official act. Missing the focus on the corruption. They referred to it as routine political currencies for a regular supporter, some of who gives Campaign Contributions, this was in response to secret gifts that the public did not know about. I think the court mistakenly focused on the precise nature of what the governor did and failed to focus on the fact that basically, williams was able to buy access to government power and get actions from the governor get the governor to exercise the power of his office in exchange for secret gifts. That gave him an access and benefit from the governor that regular citizens could not get. Brian before the court, here is governor mcdonnells counsel. Defense council. To hear a little bit of what he was saying during the oral argument. [begin video clip] the government argues that in quid pro quo bribery, official action encompasses any action in official duty. To reach the conclusion, it asks you disregard the nightzero decision of the court. The government is wrong. In order to engage in official action, he must make an official decision or urge someone else to do so. The line is between access to Decision Makers and trying to influence those decisions. [end video clip] brian he was successful. Why . Randall i think the court was concerned about the potential threat of the statute breadth of the statute. They worried about the prosecutors going after politicians as routine political. The flaw in that sphere is that it fails to take into account that this was not an ordinary political relationship. But this was in response to secret, corrupt gifts taking place. And i think its a mistake that mr. Franciscos prevailed. It was a mistake to narrow the scope of what we say could be the subject of a bribery case, this official act. It is not true in every bribery statute. The Virginia State statute prohibits paying officials for any exercise of their discretion, which is far broader and would cover governor mcdonnells behaviors. The problem i had with the courts results is that now we had situation where governor mcdonnell or another could set up a system and say, you want to meet with someone in my cabinet or demonstration to make a pitch administration to make a pitch . I will set up that meeting for you and you pay me 10,000 and that will not be disclosed anywhere. That will go in my pocket. You pay me and i will set up the meeting. I will not tell them how to decide, but i will get you into the room. If you dont pay me, no meeting. In the mcdonnell opinion, that is no longer a bribe. Most would say that his corrupt. Under mcdonald you would have to say, it is not an official act so it is not problem. Thats wrong. Brian heres a moment where the chief justice tipped off where the whole thing went wrong. 35 seconds. [begin audio clip] there is an extra ordinary document in this case, a brief filed by president obama, former white house canceled of president george w. Bush, former white House Counsel of president clinton, former white House Counsel of president george h. W. Bush, former white House Counsel of president ronald reagan. They say, quoting their brief, that it will cripple the ability for elected officials to fill their role in our democracy. Its a store those people agree on anything. Its extra ordinary those people agree on anything. [laughter] [end audio clip] brian they are in a highprofile position thinking prosecutors will come after them. The kind of people that go on the court and have been inside government, nobody expected a 90 decision here. They all thought a prosecutor could easily come after us for the simplest situations. Randall i think there was a sort of parade of horribles paraded out by the defense. The idea that if the decision were upheld, any politician is subject to prosecution. That was the dramatic overstatement and it failed to focus on the fact these were not just routine medical favors for supporters. Those concerns were overblown and exaggerated, but successful in persuading the court that if they did not limit the statute that way, that that was a real risk. Part of it comes down to if you think prosecutors can be trusted to not bring frivolous cases and there are differences of opinion about that. Some say the system we have had has been successful. We have broad bribery statutes, but prosecutors dont indict politicians for routine political favors and go to rotary breakfasts. We can rely on their discretion to bring appropriate cases where there appears to be truly corrupt behavior. But some disagree and think we need to impose more limitations. Otherwise we are giving prosecutors too much power. Power to go after politicians they do not like and that was definitely one of the courts concerns. Brian the reason why we want you to talk about senator robert menendez, who is in a trial in newark right now, something they expect to go on for another couple months, is because one vote matters in the United States senate. Let me show you 15 seconds of senator menendez so everyone knows who we are talking about and then you can explain what is going on in new jersey. [begin video clip] im angry because prosecutors dont know the difference between friendship and corruption and have chosen to twist my duties as a senator and my friendship into something that is improper. They are dead wrong and im confident they will be proven so. [end video clip] brian two years ago, the trial just started. It took two years. Go back to the beginning of this. If you had been in the prosecutors office, how did this start . Randall there were initial allegations about menendezs relationship with this doctor, and there was all those other conduct that led to a broader inquiry and that is not uncommon. You look at one aspect of the case and other doors open up. The twoyear delay was because the senator was claiming the prosecution was barred by the speakers debate clause, they were proficient on Holding Members of congress responsible for anything they say or anything related to that. Brian how did that relate . Randall ultimately it doesnt because the court rejected his claims. He was arguing he was been prosecuted for his official actions as a senator by the steps he took by alleging and indictments on various issues. Protected activity is central to his role as a senator. Courts rejected that, Supreme Court declined to hear the appeals. That is not part of the case now, but it took two years to get that resolved because a member of congress is allowed to appeal before the trial. It is one of those issues that can be decided before you go to trial. That was a big part of the delay. In the course of the investigation into this relationship between senator menendez and his codefendant, the prosecutors discovered what they have charged as an ongoing bribery scheme. It is another bribery case and the allegations are, in exchange for a number of valuable gifts and contributions from dr. Milligan over the years, you have senator menendez on retainer and a senator did take a series of official actions. That is the whole part of the case. It comes down to, why was he doing these things . Because the interesting thing about these cases, there is no dispute about what happened. No one will deny that dr. Milligan gave senator menendez all these trips on his private jet or the Campaign Cost visions Campaign Contributions were made. Nobody will deny senator menendez did lobby with various executive Branch Officials on milligans behalf. The question is, why did it happen . Some say its because of his corrupt relationship and the senator is claiming because it is because he is my friend and i was trying to help him out and doing routine Political Activities that i would do for anybody. Brian the grand jury, was there a grand jury involved in this . Where do they meet . How many are on the jury . How hard is it, i assume youve been on a grand jury trying to get some sort of indictment for this. How difficult is that . Randall the grand jury is definitely involved. Every felony has to be indicted by a grand jury. In this case, they are sitting in new jersey, the senators home state, where the trial is taking place. It is made up of 2022 people, who get jury duty just like everybody gets jury duty. Members of the local Community Sit inside the grand jury to hear evidence. It is a different proceeding than a trial because its purpose is not to decide guilt or innocence. Its purpose is to decide, is there enough here to make it appropriate to file charges and bring this defendant into court . They are only making a probable cause determination, similar to the judge signing an arrest warrant. It is not a guilt beyond a reasonable doubt. The hearing usually is only the government side of the case. They dont have the right to come in and present witnesses or present evidence or cross examined. It is close proceeding, there is no judge, no defense attorney, the defendant is not there. Its a prosecutor and the witness and members of the grand jury. It is the primary innocent get a tool that federal prosecutors have as it is the grand jury that gives you the power to issue subpoenas and compel a reluctant witness to come in and testify under oath, compelled institutions to come in. It is the primary investigative tool in federal prosecutions, particularly important in whitecollar cases like this. Brian technical thing, his friend, if the grand jury calls them in, do they have to go . R