US senator Bob Mendez is poised to blame his wife during his upcoming Federal corruption trial according to newly unseal documents in the case Menendez May point the finger at his spouse naen Menendez for bribery charges the couple is facing by claiming she hid information from him that led him to believe they weren't doing anything illegal the couple is accused of accepting cash gold bars and other bribes in exchange for using menendez's political influence the the bombshell revelation was contained in just two sentences of an unredacted Court filing reading quote while these explanations will tend to exonerate Senator Menendez by demonstrating the absence of any improper intent on Senator menendez's part they may inculpate naen by demonstrating the ways in which she withheld information from Senator Mendez or otherwise leted him to believe that nothing unlawful was taking place legal experts say that tactic could protect the senator and because of a rule known as spousal privilege also his wife here to explain how is Brian Whisler an attorney and former Federal prosecutor who has experience with this strategy Brian Whistler thanks so much for coming on the show so explain to me how this strategy Works in a way that would both exonerate the senator but potentially also benefit his wife I'm I'm unclear on that yeah I mean I think in in the first instance the the approach by the senator is is one that um uh is is like one would say creative and certainly is uh uh borrowing from a A playbook in a recent case involving the government govern M McDonald from the Commonwealth of Virginia who who took a similar strategy in his corruption trial and um unfortunately wasn't successful but it was this a very similar strategy so this would rely on Senator Mendez taking the stand uh if he does he could share conversations he had with his wife that would prove he didn't know that there was anything illegal going on or he was unaware of any wrongdoing wouldn't that then essentially uh I mean cast the blame on her well it certain it certainly would and um it's it's a it's obviously a tactic that's designed to not only exonerate him but hopefully uh to minimize the exposure that she might ultimately receive I think part of the thinking may be that juries um tend to be more sympathetic to spouses she's not the political figure um she follows his lead for the most part uh so perhaps it would result in a benefit to both as as you suggested um of course in my view jurors are are generally pretty Savvy and um they can surmise that this in fact might be u a a ploy to Designed you know to to achieve a successful outcome for both when in fact the evidence may not necessarily point that way well so what changes now that it appears they're going to have separate trials if the senator takes a stand which we know it's it's been rare that defendants uh take the stand in in their cases but if he does can that evidence then be used in naiden menendez's trial or does spousal privilege negate that yeah he' be he would be waving uh waving that if he takes the stand uh and describes uh various Communications that are that are occurring between uh the two spouses and it's the only viable way from an evidentiary standpoint that that evidence could come in uh in support of his defense that he did not have sufficient State of Mind whereas she did it seems almost strange I guess that we've had such a look into what seems like will be the defenses uh Playbook going into this trial is that typical and the fact that these details were included in that Court Document albeit they were sealed uh is it typical for them to lay out these tactics in that way so in order for the court to to properly rule on the defense motion to sever the trials uh the defense has to offer a substantial basis uh to support that motion a factual basis that is and that's that's what was was done here of course it's a very highlevel uh summary of the anticipated defense should uh the senator take the stand in his own defense uh but there has to be a factual basis in order for the court to properly rule on the motion so is there a way that they use this tactic and uh they come out unscathed and keep the marriage intact it seems like fingers are going to be pointed I think it's a live possibility but uh one can imagine that it's it is quite a challenging defense to mount again given the prominence of the lead defendant uh that he was the one that was you know engaging with these uh various business partners uh as alleged she was the beneficiary it seemed of um the benefits that were conferred as a result of those arrangements as alleged in the indictment it's it's just significantly challenging I think for a juror to look at this and conclude that the spouse the non-political spouse in this case uh was The Mastermind or the driver of of the scheme now look it all depends on the evidence at the at the end of the day right but I was at the McDonald trial I represented the uh cabinet members and the and the staff the senior staff I saw this Theory Advanced and it was done very elaborately uh to separate create a wide golf between the two spouses and it just it it just was not successful and I think partly because there was uh the you know justos between the the two spouses uh led the the jury to conclude that that the governor certainly had knowledge of of what was alleged Brian Whisler is an attorney and a former Federal prosecutor Brian thanks as always for your Insight great to speak with you have a great rest of your day [Music]