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Fridays with Nicole Sandler, with Updates

So much happened between when Nicole and I taped this and when she posted it:

  • In the Menendez trial, Judge Sidney Stein ruled that the jury can’t see key evidence because of Speech and Debate protections. (Here’s the earlier Politico article explaining the problem, which I referenced in the podcast.)
  • In the Hunter Biden pretrial hearing, Judge Noreika generally ruled favorably for Hunter, including that he will be able to challenge individual communications from the laptop on a case-by-case basis. In CNN’s report on the issue, AUSA Derek Hines’ assurances about Hallie Biden’s ability to validate the most important texts from the case was a bit less boisterous than in court filings; he said she could corroborate that she sent her side of the texts, not that she received Hunter’s responses: “What we’re using from the laptop are messages that will be corroborated by a witness who will testify that she sent those messages.” Btw, don’t read NBC’s coverage of the hearing — they had at least five journalists there and still missed basic details. Noreika did not yet rule on the three-colored gun form.
  • I meant to mention on the show that Trump has collected on the first $40M of his quid pro quo with energy executives.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

The Cuellar Indictment: DOJ Moves to Make 219 FARA a Thing

DOJ indicted Henry Cuellar and his spouse Imelda last Monday on charges that they laundered almost $600K in bribes through sham consulting contracts to Imelda in return for policies favorable to a state-owned Azerbaijani oil company and a Mexican bank.

The case was charged in South Texas, but will be prosecuted by a bunch of DC-based prosecutors.

Acting Deputy Chief Marco A. Palmieri, Acting Deputy Chief Rosaleen O’Gara, and Trial Attorney Celia Choy of the Criminal Division’s Public Integrity Section and Trial Attorney Garrett Coyle of the National Security Division’s Counterintelligence and Export Control Section are prosecuting the case.

There are two cases related to this one, 4:24-cr-00089, 4:24-cr-00113, both of which were charged this year, both of which remain sealed. That means several other people involved in this scheme are also being prosecuted.

There are several key participants in this alleged scheme who might be candidates for either parallel prosecution or cooperation deals. For example, one of the Cuellars’ adult children has allegedly been getting a cut of these deals and, in 2021 (both schemes appear to have paused in 2020), took over the Azerbaijani scheme and got payments to close out the Mexican scheme. As noted below, absent that child’s involvement, at least the Azerbaijani side of the indictment would face timeliness problems.

The indictment also describes that a San Antonio associate of Cuellar’s served as middleman for the contract with Mexico, allegedly laundered through Cuellar’s former Chief of Staff; three paragraphs of the indictment describe conversations the San Antonio associate had with Cuellar back in 2015 that must arise from his direct testimony.

The alleged conduct in this indictment is dated. The Azerbaijani side started over a decade ago, after Cuellar was elevated to Appropriations shortly after the couple traveled to Baku.

22. Shortly after the CUELLARS returned to the United States, Azerbaijani officials discussed recruiting HENRY CUELLAR to promote Azerbaijan’s interests in the United States Congress. On January 23, 2013, an Azerbaijani diplomat emailed the director of Foreign Oil Company-1’s Washington, D.C. office, listing the newly announced membership of the Appropriations Committee’s Subcommittee on State, Foreign Operations, and Related Programs, which included HENRY CUELLAR. The diplomat wrote, “[t]he good news is that Cuellar was just in Baku.” The employee continued, “[w]e need to work with these offices to make sure we build an anti-[Representative-1] coalition.” Representative-1 was a member of the Congressional Armenian Caucus. The diplomat further wrote, “[i]n your Congressional outreach and engagement with [Individual-1] please keep in mind these folks as a top priority.”

The indictment alleges that by February of 2014, the Cuellars were setting up a consulting contract to receive funds.

Because these are dated allegations, there could be some vulnerability regarding statutes of limitation. For example, all the Azerbaijani payments to Imelda’s allegedly sham companies were more than five years ago.

All but two of the payments from Mexico to Imelda ended more than five years ago (and the Mexican side of the payment took place in January 2019, so outside that five years).

Three of the five individual money laundering charges happened more than five years ago — but just barely, a matter of weeks.

The couple’s child assumed — or perhaps resumed — the Azerbaijani relationship, but in 2021 (and specific details of payments are not provided). Three of 13 overt acts described as the payoff for bribes took place in 2020, when the indictment provides no evidence of payment (and the rest are all also more than five years old).

The same child was paid by the San Antonio associate the remainder of Mexican money owed in 2021.

So without including the child, this indictment would be barely viable, perhaps not viable at all with regards the Azerbaijani conduct.

The Cuellars are charged with a bunch of crimes: For both sides of the indictment, with conspiracy, bribery, and wire fraud, plus money laundering and money laundering conspiracy.

In addition, they’re charged with 18 USC 219 and 2, a public official acting as an agent of a foreign entity.

This is a FARA charge that was first used with Robert Menendez last year.

After his indictment was superseded a second time, he took to the Senate floor to describe how he has balanced criticism with support for the countries alleged to have bribed him, what he called diplomacy. He also argued that the government was trying to criminalize working to bring foreign contracts to New Jersey, something members of Congress do all the time.

But Menendez specifically took aim at that statute, 18 USC 219.

This is an unprecedented allegation. And it has never, ever been levied against a sitting member of Congress. Never. And for good reason.

It opens a dangerous door for the Justice Department to take the normal engagement of members of Congress with a foreign government and to transform those engagements into a charge of being a foreign agent for that government.

I want to address the accusations as they relate to me, but I don’t want you to lose sight of how dangerous this precedent will be to all of you. Let me start by describing my history of taking adverse positions to the government of Egypt. My defense of human rights, democracy, and the rule of law in that country, and my stinging criticism of the violation of human rights, democracy, and rule of law issues in Egypt. One fact is indisputable. Throughout my time in Congress, I have remained steadfast on the side of civil society and human rights defenders in Egypt and everywhere else in the world.

[snip]

Does any of this sound like I was on the take with Egypt? Of course not.

[snip]

But you can’t challenge the leader of an authoritarian state in public and among other members of Congress and take actions adverse to their interests and at the same time serve as an agent of that same foreign government.

Over my 30 years in engaging in foreign policy, I don’t know of any dictator or authoritarian leader who is willing to be publicly chastised, or regards someone who dares to do so, as his agent.

Which brings me to the danger of what the Justice Department has created by charging a sitting member of Congress with acting as a foreign agent.

The relevant FARA statute’s definition of agent is broad. It includes anyone who engages in political activities, publicity services, or other certain acts at the order, the request, or at the direction or control of an agent of a foreign principal. Applied to members of Congress, it covers anything that could in any way influence any official or agency of the United States or any section of the public within the United States as to public policy.

So, when members of the Senate from agricultural states went to Communist Cuba to sell rice or poultry or sugar or beef, and were told by the Castro regime they would consider doing so, but the Senators had to convince the US Administration to change US law and lift the embargo and permit credit to take place for such sales, and then came back to the United States and advocated for exactly that request, would that make them a foreign agent of Cuba? I think not.

[Reviews advocating for Iron Dome after a trip to Israel, advocating for Abraham Accords and civilian nuclear program and technology transfers after a trip to Saudi Arabia]

For the government, the sky is the limit if they want to pursue you.

Menendez went on to claim that DOJ’s allegations of giving of cash and gold bars were sensationalized, and that he would explain the real source of them.

It is a fair point, that often members of Congress will advocate for policies that either benefit their states or seem like sound policy even as those same policies may benefit a foreign power.

That said, Menendez did not, here, address the allegation that he gave sensitive information to Egypt and he spun his advocacy for Wael Hana to retain the halal contract for Egypt as someone protecting business in his district.

But he is right that, thus far, the government has not directly tied the cash and gold bars to specific official acts (and its claims about the purpose of the gold bars has evolved with each superseding indictment).

At least on their face, however, the allegations against Cuellar are more straightforward than those against Menendez, because in Cuellar’s case, there were contracts and efforts to create middlemen, contracts that Cuellar reviewed personally. A lot will depend, in the Cuellar case, on the government’s proof that Imelda did nothing in exchange for her contracts, something of which the government is only beginning to provide proof in the Menendez case (and because Menendez’ spouse Nadine is facing some kind of health crisis, she has been severed from the other defendants; her conduct will be presented as second-hand proof when the Menendez trial starts next week).

Menendez challenged the 219 charge against him, arguing that it put a jury in charge of evaluating advocacy that (Menendez argued) should be protected under Speech and Debate. In his challenge Menendez showed how quickly certain stances — advocating for the end to the embargo on Cuba, doing whatever Bibi Netanyahu asks, or funding Ukraine — could become retaliatory cudgels.

It is hard to imagine a criminal prosecution that is more flatly foreclosed by the Speech or Debate Clause.

To appreciate why, some background on FARA is needed. For most Americans, FARA is a disclosure statute: It requires those who meet its definition of “agent of a foreign principal” to register with the Department of Justice. FARA works differently for “public officials,” however, including “Member[s] of Congress.” 18 U.S.C. § 219(c). For them, FARA is not a disclosure obligation, but a criminal prohibition; it is a felony if any public official “is or acts” as an agent of a foreign principal. Id. § 219(a).

As to Members of Congress, the FARA analysis therefore turns exclusively on whether the legislator has acted as a foreign agent. And the definition of “agent” is broad: It includes anyone who (i) engages in “political activities,” “publicity” services, or certain other acts, (ii) “at the order, request, or under the direction or control, of a foreign principal.” 22 U.S.C. § 611(c)(1). The first element sweeps in most of what legislators do: Political activities include anything that will “in any way influence” the government or the public with respect to “domestic or foreign policies” or “the political or public interests, policies, or relations of a government of a foreign country.” Id. § 611(o). The second element, moreover, is so far-reaching that not even a “common law agency” relationship is required to satisfy its terms. Att’y Gen. of U.S. v. Irish N. Aid Comm., 668 F.2d 159, 161 (2d Cir. 1982).

As these elements reflect, § 219 thus operates differently than bribery statutes. The latter proscribe corrupt agreements by public officials. That is why it is possible to prosecute Members of Congress for agreeing to sell legislative acts, without proving or otherwise calling into question those acts themselves. Brewster, 408 U.S. at 526. By contrast, FARA targets actions. See 18 U.S.C. § 219(a) (prohibiting “act[ing]” as agent of a foreign principal). And if those action are legislative in nature, they are immunized as Speech or Debate.

[snip]

The Speech or Debate Clause forecloses the FARA count in this case. But there is a more fundamental constitutional problem with applying § 219 to any Member of Congress—which is perhaps why this has never before been done. For the Executive Branch to accuse an Article I legislator of a crime based on the way he performs his constitutional duties is an affront to the separation of powers and an infringement on the First Amendment. One branch cannot superintend another, let alone its advocacy, without posing serious dangers to the proper functioning of our democracy.

[snip]

Indeed, it takes little imagination to see what winds the government is sowing. Suppose a senator comes back from Israel, and says he will support whatever aid Prime Minister Netanyahu seeks. When he does so, is that at the “order” or “request” of a foreign power? Does it matter whether he would vote that way anyway? Is this really a question for a jury at trial? Now layer on top the risk of selective prosecution. Envision a future President hostile to Ukraine. Under § 219, that President could prosecute any legislative thorn in his side by charging a FARA violation for having promoted military aid at the behest of President Zelenskyy. As this case reveals, an indictment alone wreaks enormous political damage. This threat would produce a deep chill across Congress, freezing the ability of legislators to execute their functions. That is incompatible with our constitutional structure.

Judge Sidney Stein rejected the argument, because Congress itself applied Section 219 to itself and because Section 219 does not limit any constitutional power of Congress.

Menendez moves to dismiss Count Four based on a separation of powers argument. His central claim is that Section 219 violates the Constitution’s separation of powers doctrine when applied to Members of Congress by “delegating to the Executive and Judiciary the power to supervise the daily functioning of the Legislative.” (ECF No. 176 at 41.) According to Menendez, FARA’s language is broad enough to encompass nearly all activities of the Legislative Branch, so long as those activities are at the “order” or “request” of a foreign principal. Therefore, Menendez continues, Section 219 effectively—and impermissibly—tasks the Executive Branch and the Judiciary with supervising and prosecuting the day-to-day activities of legislators. Menendez emphasizes that this creates a significant risk of abuse by the Executive. For example, if Section 219 is applicable to Members of Congress, “a President could prosecute any legislative thorn in his side by charging a FARA violation for having promoted military aid at the behest” of the President of Ukraine (ECF No. 176 at 40), or could prosecute “the House Speaker for advocating a standalone aid-to-Israel bill at the request of Prime Minister Netanyahu.” (ECF No. 187 at 39.) Menendez urges that, under Section 219, “the only thing standing between a Senator on the Foreign Relations Committee and federal prison is a jury finding that he listened to one of the many foreign ‘requests’ or ‘directions’ that he hears out all the time.” (ECF No. 187 at 36.) This supervision of Congress by the Executive Branch, he contends, violates the Constitution’s separation of powers.

However, it is Congress itself that enacted Section 219, and explicitly provided in that statute that it applies to its Members as follows: “For the purpose of this section, ‘public official’ means Member of Congress.” 18 U.S.C. § 219(c). In other words, Congress specifically decided that its Members should be prohibited from acting as foreign agents and, if they do, should be fined or imprisoned. Indeed, far from being “an affront to congressional autonomy” (ECF No. 187 at 39), the decision to impose criminal sanctions on its Members who act as foreign agents was an expression of congressional autonomy. Moreover, while Section 219 may create an opportunity for abuse by the Executive, that risk is substantially mitigated by the fact that the Legislative Branch is uniquely positioned to amend the statute and exempt Members of Congress if it so chooses.

[snip]

[A]s in Rose and Menendez, Congress here has passed a law with a certain requirement for its Members—not to act as agents of a foreign government—and has explicitly empowered the Executive Branch to enforce that prohibition. And, as in Rose and Myers, the risks that any congressional work will be impaired or of presidential abuse are significantly mitigated by the fact that Congress can always amend the statute if it so chooses. These cases strongly support the Government’s position that enforcement of Section 219 against a Member of Congress is not barred by the separation of powers doctrine.

Again, I think Menendez’ case is at least more amorphous than Cuellar’s. It is, for example, easier to see how Menendez took actions that would benefit a businessperson in his district, though even Cuellar will be able to arguing that Azerbaijan was a crucial partner in the war on terror and that easy banking with Mexico is critical to his Laredo constituents.

I’m not saying DOJ is wrong to crack down when the spouses of members of Congress take payments from foreign countries directly affected by the policy choices their spouses make; they probably should be cracking down on such sham contracts more generally.

But DOJ is doing something new with these 219 prosecutions. We’ll see more clearly how that works in practice as Menendez goes on trial.

SDNY Adds FARA Charges to Menendez Indictment

SDNY just superseded the Robert Menendez indictment to add a Foreign Agent charge.

There’s not much new to the indictment. It lays out FARA. It establishes Menendez’ awareness of FARA’s requirements by pointing to two letters he sent asking for someone else to be investigated for FARA violations. It speaks of an agreement to deliver benefits to Egypt. It describes that the gold and cash found at the Menendez residence was in exchange for favors to Egypt. And it charges Menendez, Nadine, Wael Hana — but not Fred Daibes, the guy who dealt most of the cash — with FARA violations.

I assume much of the evidence may remain classified. But I also wonder whether this was charged now because Menendez hasn’t yet resigned — or because the Israeli war raises the stakes on US relations with Egypt.

Update: On closer read of the indictment, I see a few other key differences.

First, there’s far more detail about this meeting, in which — as with Egypt’s role in the Jamal Khashoggi assassination — Menendez seems to have interceded to protect Egypt.

21. Onorabout May 21,2019, ROBERT MENENDEZ, NADINE MENENDEZ, aa “Nadine Arslanian,” and WAEL HANA, a/k/a “Will Hana,” the defendants, met with an Egyptian intelligence official (“Egyptian Official-3”) at MENENDEZ’s Senate office in ‘Washington, D.C. During this meting, the group discussed a human rights matter pertaining to the resolution ofa claim involving the serious injuries suffered by an American citizen, who was. injured in a 2015 airstrike by the Egyptian military using a U.S -manufactured Apache helicopter. The incident leading to the citizen’s injuries and the perception of certain Members of Congress that the Government of Egypt was not willing to provide fair compensation to the injured citizen for the attack resulted in objections by some Members of Congress to the ‘awardingof certain military aid to Egypt. Shortly after the meeting with Egyptian Offical-3, MENENDEZ conducted a web search for the nameof that American citizen and visited a website that contained an article about the citizen’s claim. Approximately a week later, using an encrypted messaging application, Egyptian Official-3 texted HANA in Arabic regarding this |human rights matter, writing, in part, that if MENENDEZ helped resolve the matter, “he will sit very comfortably,”to which HANA replied, “orders, consider it done.” Egyptian Official then texted HANA screenshots of a statement from the American citizen’s attorney pertaining to the claim, which HANA then forwarded a few days ater to NADINE MENENDEZ, who in turn forwarded it to MENENDEZ. NADINE MENENDEZ subsequently deleted her text messages with HANA about this matter.

One other difference is investigative. To the existing paragraph about the search of Wael Hana’s phone in 2019, the superseding indictment notes that the search also found his encrypted texts, texts that Nadine had deleted.

That search also revealed thousands of text messages, many via an encrypted application, with Egyptian military and intelligence officials, pertaining to various topics, including MENENDEZ, and including requests and directives for HANA to act upon.

They obviously have had those for years, but decided to indict, first, without including them.

Finally, there are a few more pictures of meetings, such as this one taken in Menendez’ office and another taken from the May 21, 2019 dinner.

While this indictment may reflect more cooperation from Menendez’ staffers, much of it was all baked into the prosecution when they first indicted a month ago.

Update: The 2015 airstrike was on April Corley and her boyfriend.

Update: The indictment establishes Menendez’ knowledge of FARA — which is required for FARA but not for 951 — by pointing to two letters he wrote asking for DOJ to investigate a former Congressman under FARA. As Phil Bump lays out, that former Congressman is David Rivera; he has since been charged as an Agent of Venezuela.

Alleged Menendez Co-Conspirator Fred Daibes’ Life Just Got More Difficult

In Robert Menendez’ side of the Robert Menendez bribery docket, things are going as they do at the beginning of complex prosecutions: The two sides are squabbling over protective orders and prosecutors are asking for a CIPA hearing.

Not so on Fred Daibes’ side.

Daibes, you’ll recall, is the long-term Menendez fundraiser implied to have given Menendez gold bars to help him beat a criminal prosecution. The indictment alleges that Menendez tried to intervene with the US Attorney he helped get the job, Phil Sellinger, as well as Sellinger’s First AUSA, but failed to have much of an effect.

According to the indictment, Menendez did. The indictment alleges that Menendez raised Daibes before supporting Sellinger for the nomination.

In that meeting, MENENDEZ criticized the U.S. Attorney’s Office for the District of New Jersey’s prosecution of FRED DAIBES, the defendant, and said that he hoped that the Candidate would look into DAIBES’s case if the Candidate became the U.S. Attorney. MENENDEZ did not mention any other case in the meeting. After the meeting, the Candidate informed MENENDEZ that he might have to recuse himself from the DAIBES prosecution as a result of a matter he had handled in private practice involving DAIBES. MENENDEZ subsequently informed the Candidate that MENENDEZ would not put forward the Candidate’s name to the White House for a recommendation to be nominated by the President for the position of U.S. Attorney.

And Menendez allegedly called Sellinger’s First AUSA, Vikas Khanna.

b. On or about January 21, 2022, MENENDEZ called Official-3 and asked the identity of Official-3’s First Assistant U.S. Attorney (“Official-4”). As a result of Official3’s recusal, Official-4 had supervisory responsibility over the prosecution of DAIBES.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

[snip]

45. Official-3 and Official-4 did not pass on to the prosecution team the fact that ROBERT MENENDEZ, the defendant, had contacted them as described in the above paragraphs, and they did not treat the case differently as a result of the above-described contacts. In or about April 2022, FRED DAIBES, the defendant, pled guilty pursuant to a plea agreement that provided for a probationary sentence.

Apparently completely unrelated to all that, after a series of continuances on Daibes’ sentencing after entering into a sweetheart plea deal, the judge in the case, Susan Wigenton, threw out the terms of the deal (presumably meaning the probation sentence).

TEXT ORDER as to FRED DAIBES, MICHAEL MCMANUS: All parties are hereby advised that, pursuant to Federal Rule of Criminal Procedure (Rule) 11(c)(3)(A), and as stated on the record on April 27, 2022, the date of the Courts deferred decision of acceptance of the plea agreement at the time of the entry of Defendant Fred Daibes’s plea of guilty, the Court has had an opportunity to review the presentence report (PSR). Pursuant to Rule 11(c)(5), the Court hereby rejects the plea agreement dated April 13, 2022. (D.E. 67.) Similarly, as stated on the record on May 24, 2022, the date of the Courts deferred decision of acceptance of the plea agreement at the time of the entry of Defendant Michael McManus’s plea of guilty, the Court has had an opportunity to review the PSR. Pursuant to Rule 11(c)(5), the Court hereby rejects the plea agreement dated May 5, 2022. (D.E. 76.) The Court is not required to adhere to the terms of the plea agreements, and the cases may be disposed of less favorably toward the Defendants than the plea agreements contemplated. Should any party wish to withdraw from either of the plea agreements (D.E. 67, 76), they must do so by Monday, October 16, 2023. If the pleas are not withdrawn, this Court will proceed with sentencing as scheduled. So Ordered by Judge Susan D. Wigenton on 10/5/2023. (cds) (Entered: 10/05/2023)

Daibes now has ten days to withdraw from the plea deal or accept what sounds like will be a far harsher sentence.

Meanwhile, prosecutors in the Menendez docket are curious why Daibes’ lawyers from that case are now representing Wael Hana in the Menendez case, suggesting there may be a conflict, not just with the Hana representation, but also because Lawrence Lustberg is a witness to some of the events in the Menendez case.

As discussed at the October 2, 2023 initial pretrial conference, Mr. Lustberg presently represents co-defendant Fred Daibes in his pending federal case in the District of New Jersey, which case is related to the charges in this matter. See, e.g., Indictment ¶ 38. Ms. Collart likewise also represents Daibes in the pending New Jersey federal case. Since the initial conference before Your Honor earlier this week, the district judge in the District of New Jersey has rejected Daibes’s plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), increasing the likelihood of future litigation in that case. This representation presents at least a potential conflictof-interest regarding Mr. Lustberg’s and Ms. Collart’s ongoing duty to Daibes, including their duty to maintain confidences. See, e.g., United States v. Perez, 325 F.3d 115, 127 (2d Cir. 2003).

In addition, as discussed at the initial pretrial conference, Mr. Lustberg has personal knowledge of certain facts relevant to this matter. See, e.g., Indictment ¶¶ 40, 44(c). Such knowledge raises two related, but distinct concerns: First, the Government at trial may seek to call Mr. Lustberg and/or enter into evidence materials or elicit testimony from other witnesses regarding events with which Mr. Lustberg was involved. Second, Mr. Lustberg (and his cocounsel) may be limited in their ability to make certain arguments to the Court or the jury at trial, irrespective of whether their client, Hana, wishes them to make these arguments. Although the Court need not resolve the question now, the first of these issues could present an “unsworn witness” issue regarding at least Mr. Lustberg. See, e.g., United States v. Locascio, 6 F.3d 924, 933-34 (2d Cir. 1993); United States v. Kerik, 531 F. Supp. 2d 610, 614-16 (S.D.N.Y. 2008). The Government believes that the second of these issues is waivable by the defendant. See, e.g., Perez, 325 F.3d at 125-27.

As I noted, I think the indictment actually presents far less clarity about what Daibes got in exchange for a good deal of cash than most commentators acknowledge.

The complications in Daibes’ life might present a way to clarify them.

In tangential news, after a series of reports on the fatal accident that led Nadine Menendez to need a new car, New Jersey has reopened that investigation.

The Still Ongoing Investigation into Where that Robert Menendez Cash Came From

Among the most interesting stories I’ve read on Robert Menendez since his indictment is this story, from the day before the indictment.

I find it interesting for how much of the story NBC already had — but more importantly, details from NBC that don’t show up in the indictment. The story reports on two of three prongs that appear in the indictment: It provides passing coverage of the IS EG Halal financing (though offers few specifics of the Egyptian favors) and extensive coverage of the Fred Daibes relationship.

The NBC story actually attributes the Mercedes, which the indictment directly ties to Menendez’ intervention in the state prosecution of a Jose Uribe associate, to IS EG Halal (Uribe does have ties to Wael Hana’s company). NBC doesn’t mention Menendez’s alleged intervention in the state prosecution of Uribe’s associate. Of more interest, it also describes a “a luxury D.C. apartment” that may have come from Hana’s company which is not mentioned at all in the indictment.

The story notes IRS-CI’s involvement in the case (as did Damian Williams at his presser announcing the charges); there’s no sign of tax charges, yet, in the indictment, or for that matter, of campaign disclosure violations (something the NYT reporter who has followed this closely is focused on).

As noted, however, the NBC story focuses much more closely on the Daibes prong of the investigation. It describes witnesses being asked if Menendez offered Daibes to interfere in the federal prosecution against him.

Sources say witnesses are now testifying before that federal grand jury. Part of the investigation centers on the senator’s ties to Fred Daibes, a New Jersey developer and one-time bank chairman. Officials with the FBI and IRS Criminal Investigation want to know if Daibes or his associates gave gold bars to the senator’s wife, Nadine Arslanian — gold bars worth as much as $400,000.

At the time of the gift handoff, Daibes was facing federal bank fraud charges that could have landed him up to a decade in federal prison.

Sources familiar with the matter say federal prosecutors have been asking if Menendez offered to help support Daibes with his criminal case by contacting Justice Department officials about the case. If the senator did offer to act in exchange for expensive gifts, legal experts say that could be a crime.

“For purposes of the Federal Extortion Act, it makes no difference if the senator took an official act so long as he accepted the money and there was knowledge the money was in exchange for that official influence, even if he never carried out what he had promised he would do,” NBC Legal Analyst Danny Cevallos said.

The indictment does not describe such an offer. The closest thing it describes is this exchange, after the prosecution of Fred Daibes was continued, when Nadine told Daibes that Menendez was “fixated” on Daibes’ fate:

On or about December 23, 2021, the trial of DAIBES, which had previously been scheduled for January 2022, was adjourned for reasons related to the COVID-19 pandemic. Later that day, DAIBES texted NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendant, and asked how ROBERT MENENDEZ, the defendant, who had recently sustained a shoulder injury, was doing. NADINE MENENDEZ responded that MENENDEZ was doing better having heard that the trial date was adjourned, and that MENENDEZ was “FIXATED on it.” DAIBES responded, “Good I don’t want him to be upset over it. This is not his fault he was amazing in all he did he’s an amazing friend and as loyal as they come. How is the shoulder is he sleeping. Let me know if I can get him a recliner it helped me sleep.” DAIBES thereafter provided a recliner to MENENDEZ.

There’s also an incident where Daibes and Menendez, together, yell at Daibes’ attorney for not being aggressive enough; that’s not a crime, and in fact Menendez will use it to claim he intervened because he cared, not because he was paid.

NBC’s description of Menendez’ contact with US Attorney Phil Sellinger’s office differs in fairly significant ways from the indictment. It cites sources claiming that Menendez never contacted Sellinger or his office.

Sources told News 4 there is no indication U.S. Attorney Philip Sellinger or his office were ever contacted by the senator — but the two men had been close, with Sellinger appointed to the position with the senator’s support, and Sellinger previously serving as a campaign fundraiser for Menendez.

According to the indictment, Menendez did. The indictment alleges that Menendez raised Daibes before supporting Sellinger for the nomination.

In that meeting, MENENDEZ criticized the U.S. Attorney’s Office for the District of New Jersey’s prosecution of FRED DAIBES, the defendant, and said that he hoped that the Candidate would look into DAIBES’s case if the Candidate became the U.S. Attorney. MENENDEZ did not mention any other case in the meeting. After the meeting, the Candidate informed MENENDEZ that he might have to recuse himself from the DAIBES prosecution as a result of a matter he had handled in private practice involving DAIBES. MENENDEZ subsequently informed the Candidate that MENENDEZ would not put forward the Candidate’s name to the White House for a recommendation to be nominated by the President for the position of U.S. Attorney.

And Menendez allegedly called Sellinger’s First AUSA, Vikas Khanna.

b. On or about January 21, 2022, MENENDEZ called Official-3 and asked the identity of Official-3’s First Assistant U.S. Attorney (“Official-4”). As a result of Official3’s recusal, Official-4 had supervisory responsibility over the prosecution of DAIBES.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

[snip]

45. Official-3 and Official-4 did not pass on to the prosecution team the fact that ROBERT MENENDEZ, the defendant, had contacted them as described in the above paragraphs, and they did not treat the case differently as a result of the above-described contacts. In or about April 2022, FRED DAIBES, the defendant, pled guilty pursuant to a plea agreement that provided for a probationary sentence.

Frankly, I find this part of the indictment unpersuasive, not just because the evidence presented only ever ties Daibes’ payments to proximate acts, not to a specific quid pro quo, but also because it is not explained how this case went from imminent trial to a sweet plea deal in four months.

A cooperation agreement in this investigation might explain it, but there’s no hint of that, though NBC seems to agree with me that that would explain what we’re looking at.

So one reason I find the NBC piece interesting is it portrays that prosecutors were still trying to obtain proof that this interference was a quid pro quo on the eve of the indictment. And SDNY didn’t provide that evidence in the indictment.

Couple that with two other details.

First, there’s the widely mocked line in the Menendez presser, attempting to explain the large amounts of cash found at his home:

For thirty years, I have withdrawn thousands of dollars of cash from my personal savings account, which I have kept for emergencies, and because of the history of my family facing confiscation in Cuba. Now this may seem old-fashioned. But these were monies drawn from my personal savings account based on the income that I have lawfully derived over those thirty years.

This story is at best a partial explanation for the cash shown in the indictment, much less the checks from Daibes and the gold bars (though Menendez has treated some, if not all, of the gold bars as Nadine’s property).

But consider the utility of it. Most reporters didn’t note Menendez’ silence about the gold bars (Menendez said he’d address other issues at trial). And for less credulous supporters of Menendez, such an explanation is all you need to offer to win their continued support. As with Trump, for the kind of political support you need to try to fight this out, the explanation doesn’t have to be plausible, it just needs to exist.

More interestingly, there’s probably enough truth in the statement — some of the cash the FBI seized in the search last year likely did come from Menendez’ bank account, regardless of why he withdrew it — that if prosecutors attempt to use this video at trial, it could backfire. Prosecutors have called to seize all this cash in forfeiture.

Over $480,000 in cash—much of it stuffed into envelopes and hidden in clothing, closets, and a safe—was discovered in the home, along with over $70,000 in NADINE MENENDEZ’s safe deposit box. Some of the envelopes contained the fingerprints and/or DNA of DAIBES or his driver. Other of the envelopes were found inside jackets bearing MENENDEZ’s name and hanging in his closet, as depicted below.

[snip]

A sum of $486,461 in U.S. currency seized from the Englewood Cliffs Premises on or about June 16, 2022.

But there’s not a shred of evidence that they have the ability to tie all of it — or even most of it — to the specific quid pro quos alleged in the indictment, for which it has better evidence of gold bars as payment. It may come from crime, but if it does, it may not come from this crime.

Prosecutors alleged that all of this $486,000 ties to the crimes alleged in the indictment. If Menendez can prove that some of it doesn’t, then he can use that overreach to discredit the prosecution.

As such, the statement — as ridiculous as it has justifiably been treated — seems partly a taunt. Menendez seems quite confident that prosecutors can’t trace a good deal of this cash, certainly not to these specific crimes, even if they can trace it to Daibes.

Note that Menendez’ claims to care about Egyptian human rights includes a similar taunt, referencing a meeting he had directly with Abdel Fattah El-Sisi. Whether and how and which Egyptians, including Sisi, have evidence to support Menendez’s defense will be a topic of extended litigation. Imagine trying to litigate testimony from the Egyptian President? Similarly, Menendez may demand testimony from his (still) fellow Senators, who witnessed another interaction he had with Sisi.

Which brings me to Damian Williams’ presser.

One reason I’m struck by the NBC story is it suggested there was still some work before prosecutors would be ready to indict, and yet they obtained an indictment — an indictment that doesn’t map the Daibes corruption as closely as I assume they would like — the very next day. Since then, we’ve learned that SDNY unsealed the indictment without first waiting to arrest Wael Hana at the airport, as they did yesterday. It’s highly unusual to indict someone in a way that maximizes their opportunity to flee the country, unless you have good reason to believe they won’t do that.

Hana didn’t take that opportunity to flee.

The whole thing seems either rushed, perhaps in response to disclosures like NBC’s, or tactical, an effort to advance a larger investigation.

As Williams said in his presser,

This investigation is very much ongoing. We are not done. And I want to encourage anyone with information to come forward and to come forward quickly.

That’s a version of the statement Williams made (though nowhere near as forceful) in his first presser on the Sam Bankman-Fried arrest — “come see us before we come see you” — which preceded the announcement of cooperation pleas from two key SBF associaties the following week, at which Williams again invited cooperators to come foward: “we are moving quickly and our patience is not eternal.”

I may be alone in this judgement, but I don’t think SDNY has the Daibes side of these alleged corruption — by far the bulk of the money — at all locked down. The Daibes corruption was the topic of Menendez’ taunt about cash; he may be confident that prosecutors won’t succeed in doing so.

But Damian Williams, at least, seems to believe more is coming.

Update: I didn’t see this NBC report on an ongoing counterintelligence investigation until after I posted. Note that statutes of limitation on some of the allegations in the indictment (which started more than five years ago) would have expired.

“Piker:” Donald Trump Rants as if Robert Menendez’s 22 Ounces of Gold Were as Big as Jared’s $2 Billion

The former President went on one of his classic rants of projection last night, demanding that every Democratic Senator resign because of the alleged corruption of Robert Menendez.

“They all knew what was going on,” Trump said, “and the way [Menendez] lived.”

All Trump’s rants are, at their core, at least partly an attempt to use projection to cast attention away from his own similar or worse corruption.

This one is a doozy, though.

Start with the fact that Trump was suspected of getting $10 million from Egypt in September 2016, money he used to stay in the Presidential race. That suspected bribe was investigated for several years, with the Egyptian state-owned bank suspected of making the payment fighting a subpoena all the way to the Supreme Court. The investigation was then closed in summer 2020, without ever subpoenaing Trump Organization, during a period when Bill Barr was shutting down all Mueller-related investigations of Trump. The allegation that, like Menendez, Trump was on the take from Egypt — a key prong of the Mueller investigation — has been ignored by most outlets, so I may return to describe what we know of it.

Then consider that Trump told a comedian posing as Menendez, John Melenedez, that he believed Menendez had gotten a raw deal in his corruption prosecution. “Congratulations on everything,” Trump told the guy he thought was Menendez not long after DOJ dropped the first bribery prosecution. “We’re proud of you. Congratulations! Great job! You went through a tough, tough situation, and I don’t think a very fair situation. But congratulations!”

“They all knew what was going on, and the way [Menendez] lived,” Trump wailed. But so did Trump when he congratulated someone he thought was Menendez for getting away with accepting alleged bribes.

In fact, Trump even commuted the separate Medicare fraud sentence of Menendez’ first co-defendant, Salomon Melgen (like Menendez, the jury hung on bribery charges against Melgen). When Trump claims that Senate Democrats knew what was going on? Unlike Senate Democrats, Trump reviewed Melgen’s conduct closely enough to save him from most of a 204-month prison sentence. Trump specifically said that “the ends of justice do not require [Melgen] to remain confined until his currently projected release date of August 2, 2031.” There’s no question Trump doesn’t care about Menendez’ corruption because he used his presidential authority to eliminate most punishment against Menendez’ co-defendant.

Finally, the craziest part of Trump’s attempt to project his own corruption on Democrats: a key allegation in the Menendez indictment alleges that Menendez did exactly what Jared Kushner did, only for a tiny fraction of the payoff that Jared got.

As I noted in this post, most of Menendez’ Egypt-related corruption came before he and Nadine were married, and most of the payment was laundered through Wael Hana’s halal company, at which Nadine had a no-work job. That may make it hard to prove was a quid pro quo.

There’s one glaring exception to that: The 22 one-ounce bars of gold that, the indictment suggests, Menendez and Nadine received days after Menendez helped shield Egypt from repercussions tied to their role in the Jamal Khashoggi execution.

As the indictment explains, after Nadine’s relationship with Egyptian Official-4 had blossomed over time, the two of them set up a meeting between Menendez and a senior Egyptian intelligence official on June 21, 2021, before the same official would meet with other Senators.

On or about June 21, 2021, NADINE MENENDEZ and Egyptian Official-4 organized a private meeting between MENENDEZ and a senior Egyptian intelligence official (“Egyptian Official-5”) in a hotel in Washington, D.C. prior to a meeting between Egyptian Official-5 and other U.S. Senators the next day. On the day of the private meeting, MENENDEZ provided NADINE MENENDEZ with a copy of a news article reporting on questions that other U.S. Senators intended to ask Egyptian Official-5 regarding a human rights issue. NADINE MENENDEZ then sent that article to Egyptian Official-4, who responded, “Thanks you so much, chairman [i.e., MENENDEZ, the Chairman of the SFRC] also raised it today, we appreciate it.” The next day, NADINE MENENDEZ texted Egyptian Official-4 that she hoped the article she had sent was helpful, and stated, “I just thought it would be better to know ahead of time what is being talked about and this way you can prepare your rebuttals.”

A Michael Isiskoff story posted the same day explained what Egypt would need to “rebut:” Egypt’s Intelligence head, Abbas Kamel, was set to be grilled about Egypt’s role — providing training and drugs — in the execution of Jamal Khashoggi.

A just-released Yahoo News “Conspiracyland” podcast series about Khashoggi’s murder [] revealed that the Gulfstream jet carrying a so-called Tiger Team of Saudi assassins to Istanbul made a middle-of-the-night stopover in Cairo for the purpose of picking up a lethal dose of undetermined “illegal” narcotics.

The drugs were injected hours later by a Saudi Ministry of Interior doctor into Khashoggi’s left arm inside the Saudi Consulate in Istanbul — an operation that the CIA has concluded was authorized by Saudi Crown Prince Mohammed bin Salman, often known as MBS.

Abbas Kamel, the chief of Egyptian intelligence, is visiting Washington this week to meet with U.S. intelligence officials as well as members of the Senate Foreign Relations Committee. Staffers told Yahoo News that a number of senators are preparing to ask Kamel about the Cairo stopover — the subject of a Washington Post editorial on Sunday — and whether Egyptian intelligence officials delivered or helped facilitate the delivery of the drugs.

[snip]

There is also evidence that Egyptian intelligence may have provided training for the Tiger Team as well as previous support for Saudi abductions ordered by MBS. A Saudi source familiar with the matter told Yahoo News that the Egyptians assisted the Tiger Team with the 2015 abduction from Italy of Saudi Prince Saud bin Saif al-Nasr. An outspoken foe of MBS, the prince was tricked into boarding a plane he thought was flying to Rome but ended up in Riyadh. He has not been heard from since.

The indictment implies that whatever Menendez did to blunt the accusations of his fellow Senators, it had some tie to the 22 ounces of gold that Hana purchased two days later, at least some bars of which were found at the Menendez residence when it was searched a year later.

On or about June 23, 2021—i.e., two days after the private meeting between MENENDEZ and Egyptian Official-5—HANA purchased 22 one-ounce gold bars, each with a unique serial number. Two of these one-ounce gold bars were subsequently found during the court-authorized search in June 2022 of the residence of MENENDEZ and NADINE MENENDEZ. During the relevant time periods, the spot market price of gold was approximately $1,800 per ounce.

In his rant, Trump accused Menendez of being “piker” compared to others, but he got the comparison wrong.

After all, Menendez sold out cheap. If he received all 22 of those gold bars in 2021 in recognition of having laundered the reputation of Egypt, it would have been worth roughly $40,000.

That’s a miniscule amount compared to what Jared got — $2 billion — for whitewashing Saudi’s role in the Khashoggi execution.

Trump, who knows better than Senate Democrats what was going on, is right: Menendez was a piker. But he was a piker when you measure him against the corruption of Trump’s own son-in-law.

The Sordid Second Season of the Robert Menendez Bribery Series

There’s a really sordid aspect regarding the timing of the indictment of Robert Menendez unveiled yesterday. Its timeline starts in February 2018, when Nadine Arslanian first starts dating the senior Senator from New Jersey. That was just weeks — possibly days! — after the last bribery case against Menendez ended.

So weeks after DOJ decided not to retry Menendez on his first bribery case, a then-unemployed woman, Nadine Arslanian, started dating the disgraced Senator and, within weeks of that, she alerted an Egyptian friend, Wael Hana, that she was dating him. That set off the most alarming — but probably not the stongest — part of the case: that Menendez was feeding Egypt information and ultimately set up a back channel with an Egyptian intelligence official, meeting at his home in Egypt in October 2021. Those are alarming allegations, but not allegations as clearly tied to financial payoffs to Menendez as some other things.

It’s like some TV producer decided to renew a series for a second season based off an entirely new story line slapped on the older story. “I know! We’ll throw a woman in the mix!”

Aside from that 2021 trip, much of the Egyptian influence operation happened before Nadine and Menendez were married in October 2020. For much of the period, Nadine complained she wasn’t being paid (in a no-work job at Hana’s Halal company). And some of the meetings between Menendez and the Egyptians would not be that far outside the norm for a Senate Foreign Relations Member, much less the Chair. The trip to Egypt, probably accidentally, was made official, giving Menendez legal cover for it. And the seeming bribery immediately upon his return — like a lot of the other payments in this period — came from a long-time Menendez fundraiser, Fred Daibes, or from a Hana associate, Jose Uribe, not directly from Hana.

In other words, this story appears to start with Nadine’s friends exploiting the access she got through her relationship with Menendez. That, as alleged, is largely her corruption. And to prove the corruption, DOJ will need to prove that the payments she only belatedly got were not part of a legitimate job. It’s sketchy as hell. It raises questions about Foreign Agent laws (especially for Hana). But at least as presented in the indictment, that’s not the strongest evidence, certainly not against Menendez.

The stuff that more directly implicates Menendez is his intervention in several criminal investigations, first in the case of an Uribe associate, then in the case of Daibes, Menendez’ longtime fundraiser. Menendez allegedly tried to intervene with prosecutors to help an Uribe associate beat a state charge, and Daibes beat a federal charge, but as described, both cases resolved in probation plea deals without his interference having any effect.

The items DOJ claims must be forfeited as fruits of the crime provide a sense of how much more Daibes allegedly paid Menendez than Hana:

  • The Menendez’ residence in Englewood Cliffs (this may have originally belonged to Nadine, in which case the forfeiture stems from mortgage payments of $23,000 IS EG Halal made on the residence in July 2019)
  • The $75,000 2019 Mercedes C300 José Uribe paid for starting in 2019, which the Menendez’ tried to make look like a loan retroactively in July 2022; it’s not clear — and DOJ doesn’t say — whether the Mercedes was payoff for the Egyptian influence or for Menendez’ attempt to influence the prosecution of Uribe’s associate
  • $486,461 in cash, some of which bore Daibes’ DNA or fingerprints, one envelope of which had Menendez’ DNA, some of which was stashed in a Menendez jacket
  • $79,760 in cash seized in Nadine’s safe deposit box
  • 2 1-KG bars of gold seized on June 16, 2022; these — and at least two others that Nadine sold for around $120,000 in March 2022 — likely came from Daibes
  • 11 1-ounce bars of gold seized on June 16, 2022; these were likely what remained of 22 ounces total, originally valued at around $39,600, purchased by Hana after some meetings with Egyptian officials on June 23, 2021
  • An account tied to Strategic International Business Consultants, which Nadine formed in June 2019 after IS EG Halal got its monopoly and to which IS EG Halal paid three $10,000 payments in August, September, and November 2019

So the Mercedes (worth $75,000) at least appears to be payoff for Menendez’ efforts to help an Uribe associate beat a state case. As noted, the indictment says prosecutors shielded the investigative team from Menendez’ interference, but Uribe and the associate nevertheless had a celebratory dinner with Menendez attributing his legal good fortune to Menendez.

Because the roughly $100,000 in payments from Hana — with the exception of the one-ounce gold bars — came through IS EG Halal, DOJ will need to prove that Nadine’s no-work job really wasn’t a job or at least not a legal one.

The bulk of the payments, around $720,000 in cash and gold (the indictment also references checks not itemized here), came from Daibes. While he had financial ties to Hana, he also had a long-lasting relationship as a fundraiser for Menendez, and DOJ doesn’t lay out when the money came in. Given the extent of that relationship, Menendez’ intervention with the US Attorney’s office (and his equivocations about supporting Phil Sellinger’s appointment) are corrupt as hell but not unusual for Washington.

After all, Attorney General Garland only got confirmed after assuring Lindsey Graham and other Senators that he would continue the politically influenced criminal investigations into Hunter Biden and (by John Durham) of Hillary Clinton and her associates. And the entire House GOP is continuing such demands to this day, in part because their Sugar Daddy, Donald Trump, demands it.

There has to be something more to the Daibes’ money, something not laid out in this indictment. Particularly given that there are no campaign finance allegations, DOJ has not ruled out that Menendez was just on a regular take from Daibes. It simply doesn’t account for the amount of money Daibes allegedly gave Menendez, nor does it tie that money to specific quid pro quos.

(Daily Beast reports that Daibes has or had ties with the Italian mafia.)

Similarly, there must be more explanation to the Daibes’ plea deal. This indictment suggests that Sellinger’s First AUSA, Vikas Khanna, rebuffed Menendez’ efforts to intervene in the Daibes case, just like NJ state prosecutors rebuffed his efforts to intervene in the case of the Uribe associate who nevertheless attributed his plea to Menendez. The NJ USAO only belatedly clarified that Sellinger was recused and the plea had been approved by Khanna on the day of the indictment. And it’s hard to explain the repeated continuances of Daibes’ sentencing, first in September 2022, then in December 2022, then in March 2023, then in July 2023; sentencing for Daibes and his co-defendant is currently set for October 23, 2023. The sentencing submissions submitted in August 2022 remain sealed. If Daibes started cooperating in this case after the June 2022 searches of the other co-defendants, it might make sense, but there’s no hint of that.

Likewise, there’s no ready explanation for why SDNY is prosecuting this instead of NJ USAO. Rather than any mention that this got referred from one of those NJ offices, which is what you would hope happened if a politician attempted to influence a prosecution, the indictment establishes venue in fairly tangential acts (marked in blue in the timeline below): Two dinners Menendez and Nadine had in Manhattan, the loan payments Uribe arranged through a bank in the Bronx, and a text Nadine sent on September 5, 2019.

Finally, it’s not clear whether this investigation arose out of an investigation — perhaps for being a foreign agent, which inexplicably is not included in this indictment — into Hana, which led up to the search of his phone in November 2019 but which doesn’t appear to have alarmed anyone, or out of further scrutiny of Daibes.

Or maybe, after the prosecution failed the last time, DOJ Public Integrity (which was heavily involved in the first prosecution of Menendez) just kept watching, knowing he’d stumble again.

Some of the overt acts in this indictment — most notably when Menendez provided sensitive information about embassy staffing to the Egyptians — happened more than five years ago, so they’re only included as part of a conspiracy that continued for years after that. But I wouldn’t rule out that we get more clarity about all this money in a superseding indictment.

Update: Added the detail that the June 21, 2021 meeting with Egypt’s Intelligence head pertained to Egypt’s role in the Jamal Khashoggi assassination.

Timeline

Below, I’ve bolded key payments (there are other payments that DOJ does not date in the indictment). I’ve marked in pink the engagement and marriage of Nadine and Menendez, which may change the legal import of Nadine’s actions with Menendez. I’ve marked the acts that SDNY uses to establish venue in blue.

April 1, 2015: DOJ indicts Menendez and longterm associate, Salomen Melgen.

June 27, 2016: US v McDonnell decision.

July 17, 2017: Menendez moves to dismiss in light of US v McDonnell decision.

August 2017: State Department withholds $195 million in military support for Egypt and cancels $65.7 million in other financing.

November 16, 2017: Jury hangs in Salomon Melgen trial.

January 19, 2018: DOJ notices intent to retry case.

January 24, 2018: Judge William Walls grants Menendez’ Rule 29 motion on 7 of 18 counts.

January 31, 2018: DOJ moves to dismiss first bribery case.

February 2018: Nadine Arslanian, at the time unemployed, starts dating Menendez.

Early 2018: Nadine tells Hana she is dating Menendez.

March 2018: Menendez meets with Egyptian Official-1, Nadine, and Hana, without his professional staffers, in his DC Senate office and discusses foreign military funding.

April 2018: Uribe tells Hana that “the deal is to kill and stop all investigation”‘ of associate investigated for insurance fraud.

May 6, 2018: After meeting with Nadine and Hana (location uncertain), Menendez seeks out number and nationality of peoeple working at US Embassy in Cairo.

May 7, 2018: Menendez texts details of Embassy staffing to Nadine, who forwarded it to Hana, who forwarded it to Egyptian Official-2.

May 2018: Menendez has fancy dinner with Hana after which Hana texts Egyptian Official-1 that “the ban on small arms and ammunition to Egypt has been lifted.”

May 2018: Nadine gets Menendez to ghost write letter asking other Senators to release $300 million hold. He sends ghost-written letter to her via personal email; she sends it to Hana. Both delete the email.

Several months after March 2018: Nadine expresses hope that Egypt “replace him,” meaning Hana. 

June 30, 2018: Menendez, Nadine, and Hana meeting in Manhattan restaurant. 

July 2018: After meeting with Egyptian Official-1 set up by Nadine and Hana, Menendez tells Nadine he will sign off on $99 million sale to Egypt, stating that they have had such arms for many years and use them for counterterrorism in the Sinai.

October 30, 2018: Fred Daibes charged by US Attorney for obtaining loans under false pretenses.

December 2018: Nadine has car accident and starts complaining to Hana that she does not have a car.

January 27, 2019: Menendez, Nadine, and Hana meet at dinner (Uribe was invited but did not attend), after which Hana starts sending Nadine texts about Uribe associate’s criminal case. Nadine deleted those messages.

January 29, 2019: After reviewing texts with Nadine (which both deleted), Menendez attempts to pressure Official-2 to resolve the prosecution of Uribe’s associate. Official-2 does not intervene.

February 3, 2019: Nadine texts Hana, “I’m so excited to get a car next week !!”

2018 to 2019: Hana’s halal firm, which had no revenue, did not deliver on payments promised to Nadine.

March 12, 2019: Nadine and Uribe speak for 21 minutes, after which Uribe texts, “I am real. I will stand by my word.”

March 27, 2019: Uribe directs Nadine to a Mercedes dealer, after which she sends Menendez pictures to help pick a color.

April 2019: Uribe associate resolves case with guilty plea that was more favorable than prosecutors’ initial plea offer.

April 3, 2019: Nadine texts dealer saying Uribe told her to pick up car on April 5.

April 3, 2019: Uribe tells associate, “I need 15k cash this afternoon.”

April 4, 2019: Nadine texts Menendez that she’s going “to meet Jose for five minutes;” in the parking lot of a restaurant, he hands her $15,000 in cash.

April 5, 2019: Nadine uses the $15,0000 as a down payment to get the Mercedes, paying the rest with a loan based on false financing claims.

April 7, 2019: Egyptian government official informs Hana he’ll become sole certifier for halal imports.

April 8, 2019: Nadine texts Menendez, “seems like halal went through. It might be a fantastic 2019 all the way around.”

Spring 2019: Egypt grants Hana’s halal company, IS EG Halal, exclusive monopoly on certifiying meat exported from the US to Egypt as halal.

April and May 2019: USDA complains to Egypt about monopoly grant to IS EG Halal.

May 2019: Uribe starts paying off Nadine’s loan, via an associate’s Bronx business account, keeping his name out of it.

May 3, 2019: Uribe causes associate to pay off Nadine’s loan through bank in the Bronx.

May 21, 2019: Menendez, Hana, and Egyptian Official-3 meet twice, the second time at steakhouse in DC. They discuss human rights issue. Hana requests Menendez’ intervention on USDA objections to IS EG Halal monopoly.

May 22 and 23, 2019: Hana provides Nadine information on USDA objections. She texts them to Menendez, and later deletes them.

May 23, 2019: Menendez intervenes with USDA Official-1, asking him to stop interfering with IS EG Halal’s monopoly. Official-1 did not accede to demand, but IS EG Halal kept monopoly.

June 2019: Nadine forms Strategic International Business Consultants, LLC, explaining to a relative she would use it to get paid. “Every time I’m in a middle person for a deal I am asking to get paid and this is my consulting company.”

July 2019: After mortgage company moves to foreclose on Nadine, IS EG Halal pays $23,000 to bring Nadine’s mortgage current. As part of those discussions, Nadine said, “When I feel comfortable and plan the trip to Egypt [Hana] will be more powerful than the president of Egypt.” [DOJ does not allege Menendez was part of this discussion.]

July 2019: A New Jersey detective asks to interview Uribe’s associate, leading Menendez to attempt to intervene again.

July 31, 2019: Uribe contacts Nadine saying “We need to move fast” … “We can stop this.” Nadine responds that she will “address itfirst thing tomorrow morning or tonight depending on when he is home.” Menendez does Google search on State agency employing insurance fraud investigator.

August 30, 2019: IS EG Halal pays Nadine $10,000.

September 3, 2019: Uribe texts Nadine saying, “Please don’t forget about me. I will never forget about you” … “I need peace.”

September 4, 2019: Menendez sets up meeting with NJ prosecutor for September 6.

September 5, 2019: Menendez, Nadine, and Uribe meet at Nadine’s house.

September 5, 2019: Nadine sends Uribe a text sent through cell tower in Manhattan.

September 6, 2019: Prosecutor meets with Menendez, Menendez informs Uribe the meeting was “very positive.”

September 9, 2019: Egyptian Official-3 texts Hana relaying that a State Department official told an Egyptian diplomatic official that “Senator Menendize put a hold on a billion $ of usaid to Egypt before the recess !!!!” Hana attempted to contact Nadine, then forwarded the Egyptian text to Daibes, who called Menendez and then responded that it wasn’t true.

September 2019: Menendez offered to provide assistance to Hana and Egypt during official trip to India, then later meets with Daibes, Hana, and Egyptian Official-3.

September 2019: Nadine complains to Daibes that Hana had not paid her. Daibes responds, “Nadine I personally gave Bob a check for September.”

September 2019: Nadine texts Menendez complaining that Hana has not left her an envelope, referencing a meeting Menendez had with senior Egyptian officials “last Saturday.” Nadine called Daibes.

September 21, 2019: Menendez, Hana, Daibes, and Egyptian Official-4 meet at restaurant in Manahattan.

September 28, 2019: IS EG Halal pays Nadine $10,000.

October 2019: Menendez and Nadine get engaged.

October 29, 2019: Uribe texts Nadine for an update. Menendez calls Uribe, after which he tells Nadine he is “a very happy person.”

After October 29, 2019: Menendez, Nadine, Uribe, and associate have celebratory dinner.

November 5, 2019: Uribe texts Nadine about automatic payments for Mercedes Benz.

November 5, 2019: IS EG Halal pays Nadine $10,000.

November 9, 2019: Uribe sets up automatic payments through another trucking company, ultimately paying $30,000 in addition to the cash down payment.

November 2019: Search of Hana’s cell phone reveals thousands of text messages with Nadine, many of which she had deleted.

March 2020: Nadine texts Egyptian Official-3 and offers to help, then setting up meeting with “the general,” after which Menendez intervenes to pressure State to increase its engagement on Grand Ethiopian Renaissance Dam.

October 2020: Menendez, Nadine, Egyptian Official-3 ,and Egyptian Official-4 meet for dinner in Edgewater, NJ.

October 2020: Menendez and Nadine get married.

December 2020: Menendez and Nadine have dinner meeting with Egyptian Official-3.

December 2020: Menendez meets with US Attorney candidate and complains about prosecution of Fred Daibes. US Attorney candidate tells Menedez he might have to recuse. Menendez told US Attorney candidate he would not recommend him.

Early 2021: IS EG Halal delivers two exercise machines and air purifier to Menendez home.

May 2, 2021: Advisor intervenes with US Attorney candidate about recusing, tells Menendez “you’ll be comfortable with what he says.” Menendez recommends candidate. After confirmation, he recuses.

June 21, 2021: Nadine and Egyptian Official-4 organized meeting between Menendez and Egyptian Intelligence Head Abbas Kamel, in advance of meeting with other Senators that day. Both Nadine and Menendez alert Egyptian Official-4 that other Senators were going to raise a human rights issue. Per this thread (ThreadReader is down right now but it’s here) and this Isikoff story, the human rights issue was Egypt’s involvement in the execution of Jamal Khashoggi.

June 23, 2021: Hana purchases 22 one ounce gold bars, each worth $1,800. Two were found at Menendez residence in June 2022 search.

October 2021: Nadine arranges trip for her and Menendez to Egypt, originally planned as unofficial visit. When a SFRC took steps that made it an official visit, Egyptian Official-4 said he might lose his job. During the trip, Menendez had meeting at home of Egyptian Official-5 (the intelligence official).

October 17, 2021: Driver for Fred Daibes picks up the Menendezes from trip to Egypt; the next day Menendez searches, “how much is one kilo of gold worth.”

December 23, 2021: Daibes’ trial adjourned. Daibes asks about Menendez’ shoulder injury. Nadine responds that Menendez is fixated on trial date. Daibes sent recliner to Menendez.

December 2021 through February 2022: Menendez asks Advisor to ask why US Attorney recused himself.

January 2022: Menendez sends Nadine a link about military sales to Egypt totally $2.5 billion; Nadine forwards ot Hana, saying that Menendez had to sign off on it.

January 21, 2022: Menendez called NJ US Attorney and asked for First AUSA name.

January 22, 2022: Menendez complains to Daibes that his attorney has not been aggressive enough.

January 24, 2022: Nadine has two calls with Daibes’ driver. “Christmas in January.” Thousands in cash with Daibes’ DNA later found at residence. 

January 29, 2022: Menendez searches for “kilo of gold price.”

January 31, 2022; Menendez calls First AUSA, then calls Daibes.

March 2022: Menendez asks Advisor to bring up Daibes at lunch with US Attorney, Advisor declines to do so.

March 30, 2022: Nadine thanks Daibes, then sells 2 1-KG gold bars to jeweler, each worth $60,000.

March 31, 2022: Two 1-KG gold bars Nadine provided to jeweler sold in Manhattan.

April 2022: Daibes pleads guilty to plea agreement providing probationary sentence. Sentencing has been continued repeatedly since plea.

June 2022: Federal agents approach Menendez, Nadine, and Uribe, after which Menendez pays Nadine $23,000 and Nadine pays Uribe $21,000.

June 16, 2022: Search discovers:

  • 2 1-KG gold bars
  • 9 1-ounce gold bars
  • 10 envelopes of cash, each with 10s of 1000s of dollars, bearing Daibes’ fingerprints, one which included fingerprints of Menendez

July 14, 2023: Sentencing for Daibes and co-defendant reset, for fourth time, for October 23, 2023.

September 21, 2023: DOJ amends sentencing agreement to note that Phil Sellinger was recused and Vikas Khanna oversaw the Daibes prosecution.

September 21, 2023: Indictment

The Menendez Indictment: “how much is one kilo of gold worth” … “kilo of gold price”

The latest indictment of Robert Menendez almost seems like a personal challenge to Clarence Thomas, to see if there are bribes of a public official that Thomas and his cronies on the Supreme Court won’t find a way to deem constitutional.

After all, what if Thomas is getting gold bars on the side from his “friends,” as Menendez is alleged to have been?

The short version, though, is that after Menendez’ last corruption prosecution, Nadine Arslanian started dating then married Menendez. And he started doing favors for some of her friends, Wael Hanna and Fred Daibes, who had ties to Egypt, including sharing non-public information with Egyptian officials and helping Hanna secure the monopoly on halal certification for meat imported into Egypt.

The indictment alleges a lot of breath-taking stupidity on Menedez’ part, including twice searching for the price of gold after doing something incriminating.

On or about October 17, 2021, ROBERT MENENDEZ and NADINE MENENDEZ, a/k/a “Nadine Arslanian,” the defendants, returned from Egypt as described in paragraph 29.f, landing at John F. Kennedy International Airport. Upon their arrival, a driver for FRED DAIBES, the defendant (“DAIBES’s Driver”), picked up MENENDEZ and NADINE MENENDEZ from the airport and drove them to their home in New Jersey. The next day, MENENDEZ performed a web search for “how much is one kilo of gold worth.” As discussed herein, multiple gold bars provided by DAIBES were found during the court-authorized June 2022 search of MENENDEZ and NADINE MENENDEZ’s residence.

[snip]

d. On or about January 24, 2022, DAIBES’s Driver exchanged two brief calls with NADINE MENENDEZ. NADINE MENENDEZ then texted DAIBES, writing, “Thank you. Christmas in January.” DAIBES’s Driver’s fingerprints were later found on an envelope containing thousands of dollars of cash recovered from the residence of MENENDEZ and NADINE MENENDEZ in New Jersey. This envelope also bore DAIBES’s DNA and was marked with DAIBES’s return address. In or about the early afternoon of January 24, 2022— i.e., approximately two hours after NADINE MENENDEZ had texted DAIBES thanking him and writing “Christmas in January”—MENENDEZ called Official-4, in a call lasting for approximately 15 seconds. This was MENENDEZ’s first phone call to Official-4. On or about January 29, 2022—i.e., several days after NADINE MENENDEZ had texted DAIBES, thanking him and writing “Christmas in January”—MENENDEZ performed a Google search for “kilo of gold price.”

When the FBI searched Menendez’ home last year, they found over $100,000 in gold bars, as well as $480,000 in cash.

The gold bars and some of the envelopes had the fingerprints of their alleged co-defendants.

Some of these allegations will be harder to prove. Some will be easier to pin on Nadine, unless and until one of the spouses flips on the other.

But Menendez, who escaped justice the last time DOJ tried to prosecute him for his corruption in 2015, certainly seems to have pressed his luck.

Not Content With Stoking Iran Tensions Through “Analysis”, Albright Tries His Hand at Legislation

It’s no secret that I am hardly a fan of David Albright and his Institute for Science and International Security. He often has been the “go to” authority when countries hostile to Iran have chosen to leak selectively groomed information to put Iran in the harshest possible light. The countries leak the information to a select few journalists and then Albright is called in to provide his “analysis” of how evil Iran is and how determined they are to produce nuclear weapons.

I also have been hammering hard on Robert Menendez’s Senate bill that calls for increased sanctions on Iran. As Ali Gharib noted immediately, the bill spells out conditions for the final agreement between Iran and the P5+1 group of countries that we know Iran will never agree to, so the bill guarantees that the new sanctions will eventually kick in, even if a final agreement is reached.

The New York Times is finally catching up to the points Gharib made almost exactly a month ago:

But where the legislation may have an effect, and why it so worries the White House, is that it lays down the contours of an acceptable final nuclear deal. Since administration officials insist that many of those conditions are unrealistic, it basically sets Mr. Obama up for failure.

/snip/

White House officials zeroed in on three of the conditions: first, that any deal would dismantle Iran’s “illicit nuclear infrastructure”; second, that Iran “has not directly, or through a proxy, supported, financed, planned or otherwise carried out an act of terrorism against the United States”; and third, that Iran has not tested any but the shortest-range ballistic missiles.

“They’re basically arguing for a zero enrichment capacity, with a complete dismantling of Iran’s nuclear facilities,” said Daryl G. Kimball, executive director of the Arms Control Association. “That’s not attainable, and it’s not necessary to prevent Iran from getting a weapon.”

I was not at all prepared, though, for what the Times learned about how this abhorrent piece of legislation was crafted:

Proponents of the bill deny it would deprive Iran of the right to modest enrichment. They point to the qualifier “illicit” in the reference to nuclear facilities that must be dismantled, and they say the language on enrichment is intentionally vague to mollify both Republicans, who are reluctant to grant Iran the right to operate even a single centrifuge, and Democrats, who balked at signing on to a bill that would rule out all enrichment.

“There’s no language that says a centrifuge is prohibited or allowed,” said David Albright, an expert on Iran’s nuclear program at the Institute for Science and International Security, who helped Republicans and Democrats draft some of the technical wording.

The ambiguity, he said, reflected the fact that the lawmakers who sponsored the bill are “doing it in a bipartisan way, but they have disagreements on what the end state should look like.”

Oh. My. God.

To craft one of the most important bills in US foreign policy in over a decade, Menendez and his cronies turned to an “analyst” who has a long history of producing precisely the analysis that war hawks want. And he even has the gall to brag about how the weasel words that he crafted have different meanings depending on who is reading the bill.

I really have to just stop right here and let commenters fill in the rest for me. My health and sanity won’t let me think any further on the ramifications of David Albright writing legislation on US foreign policy toward Iran.

Implementation of Interim Agreement With Iran Begins January 20, Paving Way for Further Negotiations

Although the P5+1 interim agreement with Iran was first reached in late November, ongoing talks have been required to fill in the details of just how the agreement is to be implemented. Those talks came to fruition yesterday with the announcement that on January 20, the six month period of Iran making concessions on enrichment in return for limited sanctions relief will begin. The hope is that this period of pausing progress in Iran’s development of nuclear technology and the loosening of some sanctions will provide a window to negotiate a broader agreement that provides verifiable prevention of Iran producing nuclear weapons.

US Secretary of State John Kerry noted the significance of the latest negotiating progress:

We’ve taken a critical, significant step forward towards reaching a verifiable resolution that prevents Iran from obtaining a nuclear weapon.

On January 20, in just a few short days, we will begin implementation of the Joint Plan of Action that we and our partners agreed to with Iran in Geneva.

As of that day, for the first time in almost a decade, Iran’s nuclear program will not be able to advance, and parts of it will be rolled back, while we start negotiating a comprehensive agreement to address the international community’s concerns about Iran’s program.

Because of the determined and focused work of our diplomats and technical experts, we now have a set of technical understandings for how the parties will fulfill the commitments made at the negotiating table. These understandings outline how the first step agreement will be implemented and verified, as well as the timing of implementation of its provisions.

Iran will voluntarily take immediate and important steps between now and January 20 to halt the progress of its nuclear program. Iran will also continue to take steps throughout the six months to live up to its commitments, such as rendering the entire stockpile of its 20% enriched uranium unusable for further enrichment. As this agreement takes effect, we will be extraordinarily vigilant in our verification and monitoring of Iran’s actions, an effort that will be led by the International Atomic Energy Agency.

The United States and the rest of our P5+1 partners will also take steps, in response to Iran fulfilling its commitments, to begin providing some limited and targeted relief. The $4.2 billion in restricted Iranian assets that Iran will gain access to as part of the agreement will be released in regular installments throughout the six months. The final installment will not be available to Iran until the very last day.

That last bit is critical. While the war mongers will be crying about the US giving sanctions relief to Iran, that relief will be doled out over time and only provided as Iran continues to live up to its side of the agreement, with the final portion of funds only coming on the very last day of the six months. Central to this agreement, as previously reported, is that Iran will completely halt its enrichment to 20% uranium and, by the end of the six month period, will have no stockpile of 20% enriched uranium that is in a chemical form that could rapidly be enriched further to weapons grade.

Kerry appreciates that the six month period will provide a large window in which Congressional war mongers will be doing their best to disrupt the agreement:

We now have an obligation to give our diplomats and experts every chance to succeed in these difficult negotiations. I very much appreciate Congress’ critical role in imposing the sanctions that brought Iran to the table, but I feel just as strongly that now is not the time to impose additional sanctions that could threaten the entire negotiating process. Now is not the time for politics. Now is the time for statesmanship, for the good of our country, the region, and the world.

As I pointed out when Robert Menendez put together his bill for further sanctions, that particular bill goes far beyond a mere promise of further sanctions if a final agreement is not reached. Instead, it promises these sanctions even if a final agreement is reached that allows Iran to retain the right of enrichment of uranium below 5%. It has been clear to me from the start that Iran will insist on retaining the right to low level enrichment, and today’s Washington Post story on implementation of the agreement makes that point very strongly: Read more