David Voreacos, Bloomberg legal reporter, discusses the conviction of New Jersey Senator Bob Menendez. Environmental law expert Pat Parenteau, a professor at the Vermont Law & Graduate School, discusses the climate change litigation filed by young people. June Grasso hosts.
This is Bloomberg Law with June Brusso from Bloomberg Radio.
This case has always been about shocking levels of corruption, hundreds of thousands of dollars in bribes in the form of cash, gold bars, a Mercedes Benz. This wasn't politics as usual, this was politics for profit. And now that a jury has convicted Bob Menendez, his years of selling his office of the highest bidder have finally come to an end.
Manhattan US Attorney Damian Williams basically summed up the prosecution's case against Senator Bob Menendez after a jury found the once powerful New Jersey Democrat guilty of bribery, extortion, and acting as a foreign agent of Egypt, convicting him on all sixteen counts after a two month trial where prosecutors said he put his power up for sale. Menendez continues to maintain his innocence and says he expects to succeed on a I.
Have never violated my public oath. I have never been anything but a patriot of my country and for my country. I have never ever been a foreign agent. And the decision righted by the jury today would put at risk every member of the United States Senate in terms of what they think a foreign agent would be.
Joining me is Bloomberg Legal reporter David Voriakiz, who covered the trial. David tell us about the prosecution's case.
Senator Bob Menendez was accused in a sweeping corruption case of bribery, extortion, acting as an agent of Egypt, and obstruction of justice. The case centered around some explosive evidence that the FBI sees two years ago at his home in suburban New Jersey, and that was thirteen gold bars, nearly five hundred thousand dollars in cash, and a black Mercedes Benz convertible that prosecutors said was the product of a bribe scheme that Menendez and his wife, Nadine received over the previous five years.
The prosecution had a lot of different kinds of evidence against him. You mentioned the gold bars and the five hundred thousand dollars in cash stashed around his house in closets, boots, jackets, a safe, etc. An undercover FBI videotape, a witness who flipped and testified against him. What was the strongest evidence against him?
I think the strongest evidence would have to be the cash in the gold bars, both of which prosecutors presented in court so that the jurors could see what they are talking about. There was also three different summary charts that included thousands of lines of texts, emails, calls, meetings. They had very meticulous and detailed chronogies, because this was a subtle and discreete set of interlocking schemes that really could only be understood in their totality, in which jurors saw the timeline of a number of interactions and how they fit together. And so it took time to spell that out and for the picture to come into focus, and that picture, by the end of the trial, the prosecutor said, was an overwhelming case against Menendez and the two businessmen tried with him, Will Hannah and Fred Davies David, Was.
There any specific evidence of him saying I'll do this for you if you give me that you know, quid pro quo.
There wasn't a great deal of quid pro quo evidence that prosecutors put forward, but I would say there was no specific mission, say on tape or to another witness, in which Menendez said, yes, I know I'm committing the crime of bribery. Essentially, prosecutors built their case through inference in which they showed that right after Menendez, say, met with the Attorney General of New Jersey on behalf of a businessman, he then called that businessman, who then texted someone else who said, I finally found peace. It's that sort of stringing together of a collection of different discrete pieces of evidence that lead to the clear inference that Menendez was engaged in bribery schemes with his wife, Nadine.
Menendez blamed his wife, and he had the benefit of being tried separately. She's going to be tried later, so there wasn't an uncomfortable situation of point to the co defendant and wife who's sitting next to you as the culprit. How much evidence was there against his wife.
There was a lot of evidence pointing to Nadine as a crucial go between who connected Menendez with the businessmen who were on trial with him and with other people less directly involved in the case. She also set up meetings with Egyptian military people and intelligence officials, and according to the government, collected gold bars and cash from Fred Davies, one of the co defendants, and also had a crucial connection and relationship with Will Hannah, who was the other co defendant, and prosecutors said they were like brother and sister. They were very close. And some of the most damning evidence involved the Mercedes Benz that another business this man, Jose Euribe, gave to her, essentially by handing her a fifteen thousand dollars cash down payment in a diner parking lot in New Jersey and then making monthly payments on the car for two and a half years. There was also evidence that will Hanna, the other defendant in this case, gave her a no show job in which he paid her ten thousand dollars a month for three months, and he paid off her mortgage on her home in New Jersey when she was in a great deal of financial distress.
You have to.
Tell the story about the bill that prosecutors used to show that Menendez was the one in charge, not his wife.
There was a crucial meeting behind the Menendez house in September of twenty nineteen at ten o'clock at night, in which Jose Uibe, the operating businessman who pleaded guilty, said that he came over and spoke to Bob Menendez on the patio behind their house. And this was the night before, Menendez was going to meet with the Attorney General of New Jersey and make the case that state prosecutors should drop their criminal investigation of someone who was close to Eurebe. Jurors heard Eurebe talk about Menendez summoning his wife, Nadine with a bell, and that she came out from inside the house and delivered a piece of paper where Eurebe wrote down the names of the people that he was interested in. The bell became sort of a symbol of whether Menendez really controlled Nadine or not, because the Menendez defense was that Nadine was engaging in a lot of corrupt acts behind Menendez's belt. At the prosecutors tried to puncture that defense and say that he knew everything that Nadine was doing in that at certain times, as in the bell incident, she was sort of under his thumb.
Menendez is now the first member of Congress to be convicted of being a public official acting as a foreign agent. Was there any evidence that he compromised the national interests of the United States?
There was an incident in which Menendez threw his wife and then will Hannah passed along the number of people working at the US Embassy in Cairo. Prosecutor said that was sensitive information at the time and could have compromised the people who work there and exposed them to potential terrorist attacks. The defense said that that information had already been made public in a government report years earlier, Butters countered by saying that that was old information and the current information was not public. So while they didn't actually charge him with doing harm to US security interests, they certainly suggested that that was a possibility. By Menendez passing along how many people worked at the US Embassy in Cairo.
After the Verick, Menendez said the decision would put every member of the Senate at risk in terms of what it means to be a foreign agent. Do you know what he meant by that.
Yes. Their argument was during the trial that he was not engaged in being a foreign agent, that he didn't have Egypt's interests at heart, that in fact, he only had the United States interest in heart, and that as chairman of the Senate Foreign Relations Committee, he was engaged in diplomacy, not corruption, so that all of his interactions with Egyptian military and intelligence officials were acts of diplomacy and him exercising his power as chairman of that Foreign Relations Committee. So I think what he's saying is that if you find that what I did was corrupt and acting as an agent of a foreign country, then it's going to be the case for a bunch of other senators as well.
He didn't take the stand. So what was his defense against the gold bars and the cash and the Mercedes.
Well, the general defense strategy was to attack the witnesses through cross examination, and his lawyers were quite effective at that. I'm sure they knew that he wasn't going to testify, so they put their case on primarily through the prosecution witnesses, although they did call a half dozen witnesses. At the end, he had a number of defenses, but as you say, he had to come up with a story for the cash and the gold bars. As far as the cash went, he said that he had withdrawn cash in the amount of four hundred dollars regularly, say, every two or three weeks, for decades, and that would account for all the cash that was lying around his house that FBI agents received. The gold bars, he said, were gifts to Nadine Arslanian, then his girlfriend and later his wife from her wealthy family. In Lebanon, and the prosecutors countered that by saying that the larger gold bars that they seized bore the serial numbers that matched a list in the possession of Fred Davies, a prominent developer in Edgwater, New Jersey, who was known for his generosity and for collecting gold.
In twenty seventeen, Menandez was tried on unrelated federal bribery and corruption charges that ended in a mistrial. Did the evidence here show that that mistrials cparently didn't deter him? These schemes allegedly took place soon after.
Yes, that trial ended in the fall of twenty seventeen, and the evidence showed that the bribery plot in this case for which he was convicted began in early twenty eighteen. Of course, this was handled by the federal prosecutors in Manhattan, the Southern District of New York, presumably because they felt there would be a conflict for the prosecutors in New Jersey.
So now he is going to be sentenced on October twenty ninth. He faces decades in prison on paper, What do you think a likely sentence might be.
On the most serious charges he faces twenty years in prison. It's very rare in a white collar case like this for a first time non violent offender with a long career of public service to get anything like that kind of time. It's hard to know. I mean, we just have the conviction today, so if I had to guess, I would say maybe several years.
Thanks so much, David for your reporting all during the trial. That's Bloomberg Legal reporter David Voriakis. Coming up next, the likely demise of the National Youth Climate Case. I'm June Grosso and you're listening to Bloomberg. It's one of the most closely watched climate change cases in recent years, kids taking on the federal government to secure their futures. Twenty one young people sued the federal government in twenty fifteen, asserting that the government violated their constitutional rights by allowing decades worth of greenhouse gas emissions to spew into the atmosphere. There were twists and turns as three presidential administrations fought to delay or dismiss this landmark constitutional climate case. And now, after nine years of litigation that never addressed the merits of their claims, it appears the case is as good as over with no viable path for the young plaintiffs to pursue. Joining me is an expert in environmental law. Pat Parento a professor at the Vermont Law and Graduate School. The Juliana case was filed way back in twenty fifteen. It has spanned three presidential administrations. Tell us the basics of it before we go into this tangled legal history.
Yeah, so this case was brought to try to establish a constitutional right under the federal US Constitution, under Article fourteen, sort of fundamental right to a stable climate, or, as Judge Aiken, who was the District court judge and Juliana said, a climate system capable of supporting human life on Earth. Now, some of us might like to think there should be such a constitutional right, but the case was brought to try to establish that in federal court. Almost a decade run in the federal courts, which now seems to have come to an end, although we can talk a little bit about what comes next.
And there were two different panels of the Ninth Circuit that heard this case.
Yeah, it does have a tortured procedural history. So the original complaint really shot for the moon. It asked for a plan to reduce carbon emissions basically down to zero or net zero by a date certain, with milestones all along the way, for example, phasing out carbon from the electricity sector by twenty thirty and so forth. A very very aggressive demand that federal courts order the federal government, both the President and the Congress, the entire federal government ordered them to come up with a plan to achieve net zero carbon emissions for the US economy. Very aggressive. That complaint went to the first Panel of the Ninth Circuit, and by a two to one decision, that panel decided that kind of broad, comprehensive relief was not available under our jurisprudence in the United States anyway, and so they dismissed the case on standing. They agreed that these youth plaintiffs had shown injury. Some of the injuries were physical. One of the kids had asthma, and we know climate change by heating up the air we breathe triggers asthma attacks. Another one of the youth planeffs said they were in a multi generation ranching family and they were watching their ranch dry up. And so right down the list, the court said, yes, these individual young people have shown particularized injury which is the first step establishing standing, and this was a really important finding. The court agreed that the actions of the federal government, not just in action, but the actions going back far administrations Democrat and Republican, had been making the situation worse by continuing to promote and develop fossil fuels, et cetera. And so therefore the plaintiffs had shown that their injury were being caused or contributed to by the actions that the federal government was persisting in taking. So that was two steps towards proving standing. It was the third step that tripped them up is what we call redressibility, which means, assuming this injury, assuming the actions of the government are making the injury worse, what can the courts do about it? And that's where the first panel of the Ninth Circuit said they tripped their hands. We simply don't have the authority under our constitutional system of government. That's the matter for the legislature and the executive branch to work out. The courts can't simply order it. So that was the first decision. Following that decision, attorneys representing the Youth Planets went back to Judge Aiken and emotion to amend this complaint to only seek declaratory relief. So no injunction, no comprehensive plan, just tell us do we have a constitutional right to a safe climate or not? And if not, of course why not. So Judge Aiken agreed they should be able to amend the complaint. She based her decision on the fact that the original Ninth Circuit decision did not say dismiss the case with prejudice. They didn't use that magic language dismissal with prejudice, So Aiken said, in the absence of directing me to dismiss it with prejudice, I think I have the discretion to allow the amendment. And since all they're seeking now is a declaratory judgment, that basically cures what she saw at least as the defect in the original complaint that the first panel of the Ninth Circuit said was fatal.
That first panel of the Ninth Circuit was comprised of three judges appointed by President Obama. The second panel was a different story.
So now we come to the second Ninth Circuit decision just recently within the last year, in which now we're talking about free Trump appointees to the Ninth Circuit that comprises the second panel, and they excoriated Judge Aiken. They said it was basically arbitrary, almost outrageous, perhaps for her to not read the original decision of the panel the first panel as a requirement that the whole case be thrown out, lock stock and barrel. So that's what the second panel said, and that was a three zero decision. And then we come to the very last gasp, which is after this second second Ninth Circuit panel throws the case out, the youth plaintiff lawyers asked for the full Ninth Circuit to review the case. And what we call where you have actually not the full Night cert because there are over thirty judges on this full Ninth Circuit, but it would be a much larger panel, typically twelve or thirteen thirteen I think judges sit on that kind of a panel. But it takes at least one judge of the Ninth Circuit to request a vote on whether to take the case up before an un banc panel, and they didn't even get one vote. So that's where we are today. The case has been dismissed. There's no further appeal to the Ninth Circuit. The only remaining avenue for appeal would be to file a petition for cirshararii or review to the US Supreme Court, something that terrifies a lot of us.
I mean, it's been at the Supreme Court twice on procedural issues.
I think it went up twice on what's called a rid of mandamus, which is an extraordinary remedy. The Supreme Court never granted the petition for mandamus, but they in two different and particularly the last one written by Chief Justice Roberts, they made it crystal clear that this case should be dismissed. Roberts basically was speaking directly to Judge Aiken, and he was saying to her, you need to take another look at whether this case should be certified for reviews by the Ninth Circuit. And the Ninth Circuit should look very hard at whether a case of this magnitude and scope belongs in federal court. So not too subtle message to the lower courts, get rid of it.
I guess the Ninth Circuit heard that message. The young plaintiffs asked for a rehearing before a full panel of the Ninth Circuit that would be eleven judges, but no judges requested to vote on whether to open the dismissed case once more and deny their request last week. It appears the only thing the plaintiffs could do now is file a cert petition with the Supreme Court. But is that wise to do with this Supreme Court? Or is it better just to end the case where it is right?
There's no way the Supreme Court is going to take this case for any other reason than than to do further damage two cases being brought to try to seek remedies for climate They could even revisit the Massachusetts versus CPA case, which turned on a five to four vote on whether there was standing to challenge EPA's failure to regulate greenhouse gas emissions, and the majority in that case are now gone basically, so it's a totally different court. So the only reason this Supreme Court would take the case would be perhaps to review Massachusetts versus CPA and almost certainly issue a decision that would slam the courthouse doors shut once and for all on plaintiffs seeking remedies for climate change.
Every administration, the Obama administration, the Trump administration, the Biden administration, some which we consider friendly to environmental causes. Has been aggressive, so aggressive in preventing this case from going to trial.
Why yeah, I've said from the beginning, why not have the trial? My goodness, if they hadn't fought so hard all the way back to Obama, they could have had a trial over with. And Judge Aakin was not saying she was going to find in favor of the Planets. She was saying, you take litigation one step at a time. The first question is their standing. The second question is is their liability. And what she was saying is We'll have a trial and I'll make a decision based on the trial. So at a minimum, I thought, why not let them have a trial? You know, the Department of Justice is hired and paid for by us, the taxpayers, to defend the government in court. That's why we have courts. Courts are supposed to say what the law is, so do it so. I mean, this all could have been avoided in my view if they just had the trial long before now. Either Judge Aiken would have ruled against the planeffs in one form or another, or the case could have gone up on appeal on the basis of a trial record, including all the evidence in support of what the youth plans were arguing and in support of what the government was doing to make the climate crisis worse. And wouldn't that have served some public purpose to have a record like that based on a trial tested by the evidence. I think the answer to that is yes, it would have benefited from that, even if an end result was probably going to be no determination of a constitutional right. I think that's fair to say, even with the Supreme Court we had before the Trump appointees, but certainly now there's no chance that this court would ever recognize such a constitutional right. Hell, they're busy revoking constitutional rights like Row versus Wade. So we weren't going to get a favorable decision out of this Supreme Court no matter what. But at least having a trial for no less than at least historical purposes would have made the case what the dangers were, what we're doing to these young people, and what we're not doing that could avoid some of the worst consequences.
So pat is the Juliana case, Dad, Then.
I think it's dead. I think it's time to move on. I know my dear friends at our Children's Trust are very reluctant, and I understand why to give up on it. But they've got other avenues, and perhaps we should be talking about some of those. This isn't the end of the story on young plaintiffs asserting constitutional rights. I think it is the end of the road doing so in federal court.
Coming up next on the Bloomberg Lawn Show, I'll continue this conversation with Professor Pat Parento and we'll discuss some of the successes in climate change cases brought by young plaintiffs. I'm June Grosso and this is Bloomberg. The historic climate case of Juliana versus the United States appears to be at an end after nine years of litigation that never address the merits of the case, the claims by twenty one young people that the government violated their constitutional rights by allowing decades worth of greenhouse gas emissions to spew into the atmosphere. But that case has inspired other young people to sue over climate change, and some of those cases have been more successful. I've been talking to environmental law expert Pat Parento, a professor at the Vermont Law and Graduate School, so Pat. In Montana, a group of young people sued the state over its failure to consider climate change when approving fossil fuel projects, and that became the first case by young environmental activists to go to trial.
That's right, and it's the first ruling this by a lower court in Montana, Judge Seeley issuing the first declaratory judgment in that case. Unlike Juliana, the court said, all I'm going to consider is a request for declaratory judgment. So this judge was smart enough to limit the case right from the get go. But her ruling backed up by a two hundred separate factual findings, the most detailed findings of fact we've ever seen in a climate case on science, on technology, on the physical and mental emotional effects on these young people from the effects of climate change, particularly in Montana, and also challenging Montana's really how can I put this delicately arbitrary, which prohibited state agencies from even considering the climate change effects of licensing, permitting fossil fuel development from pipelines, from coal mines, from coal burning power plants, et cetera. So that's what the use plants. In the Held versus Montana case, we're arguing your energy policies are making the situation worse, and you have a law on the books. That's blinding the agencies to the consequences of what they're doing, not only to Montana's environment, but to us as the future generation that has to live with all of this. So her decision was historic, and that was then taken up on appeal. The Montana Supreme Court has now heard oral arguments on appeal were waiting for a decision from the Montana Supreme Court.
The arguments before the Montana Supreme Court were they also procedural based on whether or not the youth plaintiffs had standing.
Well, you know, standing is at the heart of that case as well. The state is not challenging the injuries that the plaintiffs are claiming, including there was a lot of medical testimony in this case. For the first time you had psychiatrists taking the stand saying I have conducted an extensive interview of these plaintiffs, these young people, and made a diagnosis, a medical diagnosis, that they are suffering trauma some people have labeled at climate trauma. I mean sports teams in the summertime are precluded from playing soccer and other sports because of the heat and particularly because of the wildfire's blowing toxic smoke. All over the place. So, for example, the planets were saying, you know, what's my future going to be in a world like this that I see happening right before my very eyes. So there was no argument about injury. The state focused its argument on the fact that while your injuries can't be caused by emissions from Montana, because our emissions, compared to global emissions, which are about forty billion tons a year, are just a drop in the bucket, they're too insignificant to matter. That was one of their primary arguments. Their second argument was, and by the way, requiring us to consider the climate change effects, assuming we could even figure out how to do that, won't make any difference. This was really an astounding argument because we've never denied a permit for pipelines or other coal mines or other fossil fuel development, and we won't because we can't because the state law that requires this kind of environmental assessment of climate change of facts. It's a version of our National Environmental Policy Act called the Montana Environmental Policy Actor MIPA. Their argument was, MIPA, even if we wrote an extensive environmental impact statement documenting all of these impacts, we can't use that to deny permit for this development. Therefore, the court can't award any meaningful relief. Really astounding arguments that, by the way, I don't think the Montana Supreme Court is going to accept.
And then you have in Hawaii the first time a state has settled a lawsuit with a group of young people over climate change.
That's right, that's called the Navahine case. And in that case, our Children's Press was representing yet another group of young people, and they were challenging Hawaii's transportation system. Of course, Hawaii is an archipelago of I don't know how many islands, so a very complicated, you know, matter for the state to deal with. And so this case was teed up for trials starting in last June and just settled. They postponed the trial so they could negotiate an agreement, which they reached. Now, the difference between Montana and Hawaii is night and day. So Montana is a very hard right republican state, republican governor, republican ag republican legislature. Hawaii is the exact opposite. It's a liberal democratic, progressive government, governor, legislature, attorney general. And they were anxious frankly to avoid a trial because they agreed with the plaintiffs that climate change is a problem getting worse for Hawaii. We saw what happened in Maui unfortunately with those wildfires contributed at least in some part to what's happening with the weather out there. So that's the first settlement agreement where a state has agreed to make changes not only to their transportation policies, but actually start ramping up significant investments where they can in mass transit on the Big Island and Oahu, air travel is the biggest problem, So trying to figure out how are you going to deal with island hopping through airline travel is going to be a real challenge. But the point is they reached an agreement, they've got at least an initial plan for how to begin to reduce emissions from the transportation sector, and then they'll go from there.
Does it make a difference that in Hawaii the constitution guarantees the right to a clean and healthful environment and the same in Montana that constitution also guarantees that. So does that make these two states different from most others?
Yes, it does, And you're right, there's a right to a Clean and Healthy Environment provision in both Montana and Hawaii. Hawaii also has one of the strongest public trust doctrines in the United States, and that was a factor in the case as well. Other states that have a green amendment, New York, Pennsylvania. I would anticipate we're going to see lawsuits in those states trying to seek similar judgments from the state courts under those constitutional what we call green amendments, And frankly, I think there's a reasonable chance of success in both New York and Pennsylvania. There are other states with these green amendments, believe it or not. Alaska has one, Louisiana has one, Florida has one, and Our Children's Trust has litigation going on in all three of those states, in fact as litigation in every state. So we'll see what happens. But I think they're going to win on appeal in Montana. I think that's going to set a precedent. It's not going to have a lot of immediate practical effect in Montana because of the politics, but it is going to be a building block for other state courts to build on. No court likes to be the first to make a decision like this, but many courts are prepared to be the second or third to do that. The settlement in Hawaii shows that what the plintiffs are seeking is not unreasonable, is not undoable, but with the right kind of political receptivity, things can be done to improve the situation. So it's early days of this form of state based climate litigation, but for me, that is the future. That's where climate litigation, if it has some chance of success, that's where it's going to find it.
I want to touch on another case not involving young plaintiffs, because Junolulu is a plaintiff in a climate case against Snoko and other big oil companies, accusing them of misleading the public by concealing their understanding of the devastating effects of global warming. So now a coalition has appealed that decision to the Supreme Court, and the Supreme Court has asked the Biden administration for its views. Does that mean some of the justices are interested in this and how bad would if the Supreme Court took this case?
Yes, that does mean that some justices are interested in this. There was an earlier petition from the Eighth Circuit Court of Appeals in a case brought by Minnesota, where the Supreme Court declined to take the case, but Justice Kavanaugh wrote a short dissense saying, I think some of the issues being raised by the oil industry deserve review in our court. So he has signaled an interest in these cases, and by requesting the views of the Solicitor General, which of course this court may simply ignore it has before, that does say that there's some interest at least in thinking harder about whether now is the time to review these cases. This is the case from Honolulu. It hasn't gone to trial, so there's no final judgment. I've made the argument in writing that I don't think the Supreme Court actually has jurisdiction over a case from a state court where there's been no judgment. It's what's called an interlocutory appeal preliminary case. So what I'm hoping is that the court declines to take it, they don't need to take it. They probably this court probably is going to have the final word on these climate liability cases. There are now about thirty four cases pending in state court across the country, brought by state cities, counties. I think at some point there is likely to be a verdict Frankly, I don't know which one. There's going to be wins and losses probably along the way, but at some point, and maybe Hawaii will be one of those, I think there will be a verdict and a final judgment, and I think the Supreme Court will at some point take the case to determine whether or not as the oil industry is arguing, there is no remedy for climate change damages period in no court, not federal court, state court. That's their ultimate argument, and they're going to argue something they call absolute preemption, that courts have no business, no jurisdiction, no authority to adjudicate claims for damages against the oil industry, and at some point I think that is going to have to be settled by the US Supreme Court.
A lot of climate litigation ahead of us. Thanks so much, Pat for helping us understand the landscape of climate litigation. That's Professor Pat Parento of the Vermont Law and Graduate School. And that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com. Slash Podcast, Slash Law. I'm June Grosso and this is Bloomberg