Washington — During the first five weeks of Sen. Bob Menendez's bribery trial, his attorneys have peppered government witnesses with questions aimed at shifting the blame to the New Jersey Democrat's wife, Nadine.
Legal experts say Menendez's strategy is not unique, but could backfire with jurors.
"An empty-chair defense when a spouse is involved is somewhat risky, because some jurors can view the defendant blaming their spouse unfavorably, and that potentially can affect the overall perception of the defense," said Luke Cass, a former federal prosecutor who handled corruption investigations into government officials.
Scott Hulsey, a former federal prosecutor, said blaming his wife "carries a whole different sort of baggage" for Menendez than if he were to fault someone else.
"To blame the person you're married to for something that went wrong could offend some people's notion of what marriage is and what it's about," Hulsey said.
Both the senator and his wife have pleaded not guilty to more than a dozen charges related to a wide-ranging bribery scheme. Nadine Menendez's trial has been pushed to August because she's recovering from breast cancer surgery. Jurors have not been told of the diagnosis, which the senator disclosed to the public a day after his attorneys pinned the blame on his wife.
Menendez's attorneys have tried to depict the couple as living largely separate lives, claiming the senator was unaware of his wife's financial challenges and her dealings with the three New Jersey businessmen who are accused of bribing them with cash, gold bars, mortgage payments and a Mercedes-Benz convertible in return for his political influence.
The couple does not share bank accounts or credit cards, and Menendez never paid or received statements for the mortgage on his wife's longtime home after moving in with her in recent years, according to his attorney Avi Weitzman. His lawyers have also said that Nadine Menendez has a separate — and locked — closet.
"She kept things from him," Weitzman said during opening statements. "She kept him in the dark on what she was asking others to give her. She was outgoing. She was fun-loving. But she wasn't going to let Bob know that she had financial problems."
Weitzman said Nadine Menendez tried to "get cash and assets any which way she could" and kept the senator "sidelined from those conversations."
Early in the trial, an FBI agent testified about the discovery of hundreds of thousands of dollars in cash and gold bars within the couple's New Jersey home. The agent was sure there had been a man's blazer hanging inside a locked closet full of women's clothing where the gold bars were found. Menendez's lawyers say the senator did not have a key to his wife's closet and questioned the agent's memory against a photo showing the blazer hanging outside the closet. The next day, the agent said he wanted to correct his testimony after reviewing photos of the search. The blazer, he said, was hanging outside the closet.
Weitzman asked another FBI agent who testified about finding nearly $80,000 in a safe deposit box belonging to Nadine Menendez at a nearby bank about the visitor log.
"Each time says customer access with the customer listed as Nadine Arslanian, right?" the attorney said, using her previous last name.
"Yes," the FBI agent confirmed.
"And each time it says no guest, correct?" Weitzman asked.
"That's what it says, yes," the agent said.
The moments were little wins for the defense. But the prosecution's star witness, Jose Uribe, complicated Menendez's strategy of blaming his wife when he testified this week that he asked the senator directly for help in stopping a criminal investigation involving two people close to him and the senator said he would "look into it."
Uribe, who has pleaded guilty to trying to bribe the senator and is cooperating with prosecutors, said he assumed Menendez knew he had made a deal with his wife about buying her a Mercedes in exchange for the senator's assistance because Nadine Menendez repeatedly tried to set up a meeting between them. The men never discussed the car payments, but he was also not told to keep it a secret, Uribe testified.
"You have a witness who is saying, well, it wasn't your wife I was dealing with, I was dealing with you," Hulsey said. "It's another thing he's going to have to explain away as he tries to shift the blame to somebody else."
After his meeting Uribe, the senator met with New Jersey's then-Attorney General Gurbir Grewal, who testified last week that Menendez indicated he wanted to discuss concerns about a pending criminal matter. "I can't talk to you about this," Grewal recalled telling Menendez.
"You put those things together and this becomes, from my perspective, much more complicated for Sen. Menendez," Hulsey said.
Jonathan Kravis, a former federal corruption prosecutor, thinks there's a greater risk of Menendez's strategy backfiring with the six women jurors than the six men.
"A lot of it depends on execution and how you present it, and whether you're able to pull it off in a way that does not seem sexist or condescending or like you're just trying to pin it on her," Kravis said.
Menendez's lawyers are likely debating whether he will testify in the coming weeks, which would make him vulnerable to lines of questioning that could undermine his characterization of his relationship with his wife and how involved their lives were, Kravis said.
"The prosecution has started trying to introduce evidence of communications between Menendez and his wife that don't relate directly to the conduct at issue, but are just trying to establish that they're deeply involved in each other's lives," he said.
Those communications include text messages about Nadine Menendez running errands for the senator and doing laundry. The senator also checked in on her using the "Find My Friends" iPhone app.
An attorney for Nadine Menendez declined to comment on her husband's strategy.
It's a strategy similar to the one used by former Virginia Gov. Bob McDonnell, who was tried with his wife a decade ago on charges they accepted tens of thousands of dollars in loans and gifts from a dietary supplements executive in exchange for political favors.
In blaming his wife, McDonnell claimed his marriage was so dysfunctional that they could not have conspired to accept the bribes.
The Supreme Court overturned McDonnell's conviction in 2016, narrowing the definition of what kinds of conduct could serve as the basis for public corruption charges. McDonnell filed for a divorce in 2019.
Cass said public corruption cases are some of the most difficult cases to prove. But in Menendez's case, he said, some jurors "may find it difficult to believe that a sitting U.S. senator was unaware of events under his own roof."
Caitlin Yilek is a politics reporter at CBSNews.com, based in Washington, D.C. She previously worked for the Washington Examiner and The Hill, and was a member of the 2022 Paul Miller Washington Reporting Fellowship with the National Press Foundation.
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