Well, instead of being sworn in today, disgraced Senator Bob Menendez and his defense team are still trying to fight his corruption conviction.

Menendez's lawyers are asking a judge to be lenient at his sentencing later this month, saying the ordeal made him a national punchline, despite what they called a lifetime of good deeds.

Asking the judge to take into consideration Menendez's years of public service and now personal hardships, referring to the professional and financial troubles he's run into since being convicted on 16 counts of federal bribery and corruption charges.

The request comes as his defense team also mounts a case for a retrial, pointing to mistakes prosecutors made with evidence given to the jury as grounds for his verdict to be upended.

For more on that and just how likely it is, I'm joined by former federal prosecutor Chris Gramiccioni.

Hey, Chris, good to see you.

Good to talk to you.

I'm wondering what factors might Judge Stein be considering in deciding whether the errors with the evidence presented to the jury would be enough to warrant either dismissing these charges entirely or considering a retrial?

So the judge is probably right.

There's a constitutional right to a fair jury trial, and there's presumption of prejudice when when evidence like this that was rendered inadmissible would gets before a jury.

But that's not just the only finding that has to be demonstrated to justify a new trial.

You have to.

There has to be some kind of evidence to believe that the jury actually considered that evidence for there to be prejudice enough to overturn the verdict and have a new trial imposed.

So that's what the judge is assessing and that's what the arguments by the government is.

Look, there were 3000 bits of information on this laptop.

There's no reason to believe they even looked at this.

And even if they did, it's harmless error.

And the government is rightfully pointing out this this onus didn't just lie with us.

Like the defense had a couple of days to review what was going to be sent back to the jury during deliberations and they missed it.

So they're effectively arguing that it was way.

I mean, I think.

I'm sorry.

Go ahead.

No, no, no.

Continue your thought.

I think that it's I think it would be a difficult ask to overturn it just because there is no reason to believe that they actually relied on it.

You know, portions of it, inadmissible evidence that were kind of secreted in this vast array of evidence that was properly admitted.

But none of the arguments related to the suppressed evidence.

So it's going to come down to that.

And I also think that if the judge denies the new trial, the defense gets a second bite at the apple at the appellate level.

Yeah, well, and you answered my my first question.

But to your point of the appellate level, I mean, how likely is that?

We've also seen in the past some high profile political corruption trials get taken up by the Supreme Court.

I mean, is there a likelihood for that that Menendez's team could go that route?

And how likely is the court to even take up the case?

Well, in the Supreme Court, it's it's very difficult to assess that because they take such a small, minuscule amount of cases on cert.

But this guy's one of those public interest angles because it involves a prominent former senator and it is a public corruption case on appeal.

This will be something one of many topics that are appealed that they're alleging trial errors and they've made a record throughout during the during the jury trial to do so.

If it did get remanded for a new trial, I, I, I'd have if I were the U.S. attorneys, I would retry it.

But I think often what happens in practice is if the defense was so successful enough to justify a new trial, there's there's a decent possibility that there might be some kind of global resolution that arises as a result.

Or maybe he pleads guilty to some lesser amount with less punitive exposure, less jail, and maybe he makes it even possible that they might roll in resolution of the Menendez case as well.

But again, I'm just speculating.

It's these things are things that gives the defense, you know, a card to play of sorts on appeal.

For sure, and other hurdles to.

Let me ask you a question quickly before we move on to Nadine.

What about leadership changes at the U.S. attorney's office?

Will that play a role here in any of these?

Decide factors?

I personally don't think so.

I mean, every U.S. attorney, when he or she comes in, I guess it's a possibility that they have different priorities and focuses with such a high profile prosecution like this that resulted in a conviction, but for a potential, you know, error and what was sent back to the jury, it would be hard to walk away from not retrying.

That would be a different story, like in the last instance with Senator Menendez, if it was a hung jury, it's a little bit easier for a new appointed U.S. attorney to walk away and say, you know, we're not going to use resources on this.

But this was a very, very serious case.

And the evidence I still think, was overwhelming.

And I think there's still a lot of prosecutorial interest to police public corruption cases.

Significant enough.

Let me ask you about Nadine Menendez.

Her trial will start in February.

What what do we expect?

What do you expect from that?

I think it's a it's a redux of a lot of what was presented during the last trial.

It may be a little bit more streamlined and obviously focused on instances when Nadine was involved in the communications, the text or otherwise.

And for the defense, it's they basically have a playbook that they can look at and see how the government might very well present the case against maybe Menendez.

So there's a little bit of an advantage there by not going first.

They have access to, you know, transcripts and witnesses, sworn testimony that they can use to impeach or cross-examine on.

So it's a little bit easier in that regard.

I think the big challenge here is if Senator Menendez loses this motion for a new trial, that he's going to proceed to sentencing.

And then if he's sentenced, there's going to be an appeal.

And most likely they're going to ask for a stay of the of him being incarcerated pending the appeal.

And that's that's where that's going to be a big decision.

We'll see where that comes down to whether he's going to serve jail time, although the appeal is pending or alternatively, are they going to let him stay out while the appeal is pending and stay the any sentence that comes?

Judge Stein.

That's an interesting point.

Great insight.

Chris, Thanks so much for your time.

Good to talk to you.

Happy New Year.