How a Last-Ditch Effort to Save Robert Menendez From Prosecution Backfired

Last September, a prominent white-collar defense lawyer met with federal prosecutors in Manhattan in a last-ditch effort to stave off an indictment against his client.

The client was Senator Robert Menendez of New Jersey, one of Congress’s most powerful members and the subject of a corruption investigation by the U.S. attorney’s office for the Southern District of New York. In the meeting, the lawyer, Abbe D. Lowell, used a PowerPoint presentation to convey explanations for certain financial payments that were under scrutiny by the government.

It was a moment of great risk and potential peril for Mr. Menendez — and the effort failed.

Less than two weeks later, prosecutors announced an indictment charging the senator and his wife, Nadine Menendez, with conspiring to accept thousands of dollars in bribes in exchange for political favors. The government later added counts of obstructing justice, saying the senator, among other things, “caused” his lawyer to meet with prosecutors and to make false and misleading statements in an effort to cover up the scheme.

The government has made it clear that Mr. Lowell, who represented Mr. Menendez only during the investigation and not afterward, engaged in no wrongdoing. But the episode, an untold chapter in the story of the Menendez investigation that was recently disclosed in documents and testimony filed in the senator’s case, illuminates the normally confidential presentations lawyers make as they seek to persuade prosecutors not to charge a client, particularly one as high-profile as the senator.

“Lowell may have believed he knew all of the facts,” said Benjamin Brafman, a leading defense lawyer in New York who is not involved in the case. “But clearly, if the government is right, Menendez misled him.”

“This is high-stakes poker, and the government obviously called his bluff,” Mr. Brafman added.

Tatiana R. Martins, a former chief of the Southern District’s public corruption unit and now in private practice, said the decision to charge Mr. Menendez, 70, with obstruction based in part on Mr. Lowell’s presentation was unusual and aggressive — “kind of a warning shot to the white-collar bar to weigh carefully the decision to make any factual representation to the government when they are close to indicting.”

Mr. Menendez, a Democrat, has vigorously maintained his innocence since being charged last year. “From my perspective, the government has failed to prove every aspect of its case,” the senator said on Wednesday, after his lawyers called their last witness in his nearly two-month trial on bribery and other charges.

Details of Mr. Lowell’s September meeting with the government (and an earlier session in June 2023) surfaced during a courtroom dispute over whether prosecutors could introduce copies of several slides from Mr. Lowell’s PowerPoint presentation. The jury was not present.

As part of that debate, prosecutors filed a proposed summary of testimony the government said Mr. Lowell would offer about his representation of Mr. Menendez if he were called to testify. Prosecutors told the judge, Sidney H. Stein, that they provided the document weeks ago to Mr. Menendez and that he declined to sign it, “without disputing its substantive accuracy.”

Mr. Menendez’s defense team declined to comment for this article other than to say they disputed the accuracy of the government’s proposed summary of Mr. Lowell’s anticipated testimony.

The six-page document was not introduced as evidence at the trial, and will not be seen by the jury. Mr. Lowell declined to comment as did a Southern District spokesman.

According to the government’s document, Mr. Menendez hired Mr. Lowell and his law firm, Winston & Strawn, in June 2022, a few days after federal search warrants were executed at the Menendezes’ homes in New Jersey and Washington and after the senator received a grand jury subpoena.

Mr. Lowell, a veteran Washington lawyer whose clients have included Hunter Biden and Jared Kushner, had a successful track record with Mr. Menendez. In 2017, he represented the senator in an unrelated federal bribery trial in New Jersey, which ended in a hung jury. One juror told reporters that 10 of the 12 jurors supported finding Mr. Menendez not guilty. Mr. Menendez was not retried and charges were dismissed.

After retaining Mr. Lowell in the current case, the document says, Mr. Menendez told him that a businessman in 2019 made a $23,000 payment to a mortgage company on behalf of Ms. Menendez, who at the time was facing foreclosure. Mr. Menendez also told Mr. Lowell that another businessman had made car payments for Ms. Menendez, the proposed summary says.

Mr. Menendez told Mr. Lowell that the mortgage and car payments represented loans and that he only became aware of the payments in 2022 after he learned of the federal investigation, the document says.

In contrast, the indictment says Mr. Menendez “well knew” the payments were bribes and that he had learned of them before 2022.

Ms. Menendez, 57, was also indicted in the alleged bribery conspiracy and she, too, was later charged with obstruction of justice after she “caused” her lawyers to make false statements to prosecutors, the indictment says. The details of her lawyers’ discussions with the government have not been made public, and her trial has been postponed because she is being treated for breast cancer. She has pleaded not guilty.

Mr. Lowell made an initial presentation to federal prosecutors in June 2023, according to the proposed summary. Before the meeting, he discussed with Mr. Menendez the topics that would be covered, what Mr. Lowell would say about each and that the purpose of the presentation was to provide information to the prosecutors “to seek to deter them from bringing criminal charges against Mr. Menendez.”

At the meeting, Mr. Lowell made his presentation “based on what he was told by Menendez,” the document says.

Before the September 2023 meeting, Mr. Lowell again discussed with Mr. Menendez what the lawyer would say, incorporating feedback from Mr. Menendez, the proposed summary says.

Mr. Lowell also made the PowerPoint presentation, titled “Senator Robert Menendez, Presentation to U.S. Attorney’s Office, Southern District of New York, Sept. 11, 2023.”

At the meeting, the U.S. attorney, Damian Williams, who greeted the participants and made introductions, was joined by his top deputies and the prosecutors investigating the senator, according to testimony by a former office paralegal, Geoffrey Mearns.

Mr. Mearns said Mr. Lowell was accompanied by a small number of lawyers from his firm. Mr. Mearns’s testimony was supplemented by a colleague’s memo summarizing Mr. Mearns’s recollections that was not shown to the jury.

Mr. Lowell said “something along lines if you can tell us more about what you are thinking/where your heads are at, we can do a better job explaining where we (defense) are at,” the memo shows.

The beginning of the meeting, which ran 90 minutes, was cordial and friendly, according to the memo, but toward the end, especially after Mr. Lowell appeared to understand the office “was not going to be asking many questions or show its hand,” the tone shifted. Mr. Lowell seemed unhappy and was “trying to convince” the prosecutors “to talk to him more.”

“In sum, Abbe seemed to want to learn more about whether there were things that he had not given an explanation for, that might bear on charges,” the memo says.

In the dispute over whether the slides from the PowerPoint presentation should be admitted at trial, prosecutors argued that they contained false statements, supporting the obstruction count.

“The jury’s entitled to conclude that falsity was intentional,” a prosecutor, Daniel C. Richenthal, said.

The senator’s lawyers, Avi Weitzman and Adam Fee, argued that the selection of slides was cherry-picked. Without testimony from Mr. Lowell, they said, the slides would provide jurors a “distorted and unfairly pro-government view of what actually happened during the presentation.”

The defense argued that typically, attorneys make statements in such meetings with qualifications and that misstatements can occur.

“You always present it in a hypothetical: ‘If the client was to come in, he would likely say something like X,’” Mr. Weitzman told the judge. “You always say, in every attorney proffer, ‘This is based on our knowledge at present.’”

The lawyers suggested that Mr. Lowell likely delivered his presentation with such disclaimers, writing, “Senator Menendez understood that his attorney would provide the prosecutors only with his best understanding of the evidence at the time.” That, they said, would show Mr. Menendez had no intent to obstruct justice.

Judge Stein ruled that the slides could be introduced at trial; neither side called Mr. Lowell to testify.

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