Credit: (AP Photo/Seth Wenig)

WASHINGTON — Facing criminal charges, U.S. Sen. Bob Menendez and his wife want to be tried separately, a maneuver that would complicate their prosecution and shield them from sharing testimony at trial that could damage one another.

The Menendezes, who married in 2020, filed court papers this week requesting they be tried separately. The senator’s legal team also requested the case be moved to federal court in New Jersey.

While it’s not uncommon for defense attorneys to try to get their client separated from other defendants in sprawling cases, such as unwieldy federal drug cases, prosecutors and courts dislike severing defendants and creating new trials because the process is expensive and complicated, Stuart Green, a law professor at Rutgers University, said in an interview.

“The government has a strong interest in trying them together,” Green said, adding that a request from spouses to be tried apart is “a little bit” unusual. “Everything about the case is going to be complex.”

High stakes

The case against Menendez, who is up for reelection this year, has scrambled the political landscape in New Jersey, threatening the senator’s career and elevating the campaigns of U.S. Rep. Andy Kim (D-3rd) and Tammy Murphy, the first lady, who have emerged as the frontrunners to replace Menendez in the Democratic primary.

Federal prosecutors in New York accused the Menendezes of engaging in a scheme from roughly 2018 until 2023 to aid the governments of Egypt and Qatar in exchange for hundreds of thousands of dollars’ worth of bribery payments. They face years in prison if convicted.

In making this defense, lawyers for the senator said he could wind up casting blame on his wife, Menendez’s legal team wrote.

Menendez and his wife, Nadine, have pleaded not guilty to the charges, as have the three New Jersey businessmen accused of paying the bribes.

Lawyers for Menendez said in their motion the senator “intends to present a defense arguing (in part) that he lacked the requisite knowledge of much of the conduct and statements of his wife, Nadine.”

In making this defense, lawyers for the senator said he could wind up casting blame on his wife, Menendez’s legal team wrote. “By this defense, Senator Menendez’s legal team may have to argue, in effect, that any unlawful conduct — and we are aware of none — involved the actions of others (including Nadine), not the Senator.”

Attorneys for Nadine said Menendez, if he speaks publicly, could expose private information between the pair. “His testimony,” her lawyers wrote, “could include revealing confidential marital communications with Ms. Menendez that Senator Menendez deems essential and material to his defense.”

Spousal protections

Spouses are typically protected against being compelled to testify against one another, though there are exceptions.

“There’s a crime-fraud exception to anybody who’s claiming that marital communications privilege,” Chris Gramiccioni, a former federal prosecutor in New Jersey and Maryland, said in an interview. “If two people who are married who are involved in some kind of criminal conspiracy or activity, that falls outside the privacy of marriage and therefore the privilege would not apply.”

Gramiccioni said he expected the government would likely respond that marriage protections do not apply in this case. “I anticipate that’s what the government’s response will be.”

Marriage protections in the case would only cover part of the period the couple is accused of engaging in a criminal scheme — after they were married, in 2020. Prosecutors said the arrangement between the Menendezes and the men who allegedly bribed them began in 2018.

Who tends to seek separate trials?

Lisa Wayne, executive director of the National Association of Criminal Defense Lawyers, said motions to sever are common in federal drug cases with multiple defendants. A low-level seller or someone in possession of drugs may want to be tried separately from a kingpin atop the organization, Wayne said.

“‘I don’t want to be tried with that person who looks like the real bad guy. I’m just a nobody in this,’” Wayne said in an interview, paraphrasing what a low-level defendant might say. “You see that pretty frequently.”

In other instances, a defendant facing a charge or two may try to get a separate trial from a co-defendant of theirs facing a slew of charges or the potential for more criminal charges to avoid the “taint” or “spillover” from being bundled together, Wayne said.

Judges may be persuaded to grant a defendant’s motion to be tried apart if the argument is detailed and specific, she said. “If I stand up as a defendant and I can craft a persuasive argument to the judge saying, the prejudice to my client will be A, B and C. These are concrete things that will happen at trial,” Wayne said, “the judge may consider it.”

What judges want

But judges often are focused on keeping trials running swiftly and think they can keep the trial fair by directing the jury about what evidence is admissible and what isn’t, Wayne said.

If Menendez takes the stand at trial, he opens himself to being cross-examined, Green said.

Legal protections for spouses exist, much like protections offered to the relationships between priests and penitents or doctors and patients, because the public places a value on them, Green said. “It’s a sort of concession to the importance of the marital bond in society,” he said.

“Spouses should be able to open their hearts to one another, to confide in one another.”

— Briana Vannozzi contributed to this story.