Good morning and welcome to the new Litigation Daily—I'm editor Jenna Greene, here with your Daily Dicta. As always you can reach me at [email protected] or find me on Twitter: @jgreenejenna.

How Sick-as-a-Dog Abbe Lowell Powered Through Menendez Closing

The Lit Daily is not publishing on Thursday or Friday—which means we won't be crowning a Litigator of the Week. But if we were, the team of lawyers led by Abbe Lowell who defended Sen. Robert Menendez and Florida doctor Salomon Melgen on corruption charges would have a good shot.

Granted, the mistrial declared on Nov. 16 wasn't the optimal outcome—but it was a heckuva lot better than a conviction. The feds haven't said whether they'll re-try the case, but even some top New Jersey Republicans have called on the Justice Department to drop the case.

If prosecutors do attempt Round 2, they'll have a tough road: One juror told the Washington Post that 10 members favored acquittal, and only two wanted a conviction.

Lowell, who is co-head of the regulations, investigations, securities and compliance practice at Norton Rose Fulbright, is a busy man these days—he is Jared Kushner's lawyer too. (Most recently, Lowell has been pushing back at the Senate Judiciary Committee for what he calls a “gotcha game” over his client's failure to disclose documents about Wikileaks—which sorry, if you think the totally defanged committee is being too tough, then your client has big time problems.)

The beginning of the end of the Menendez trial didn't start well. Lowell dragged into court on Nov. 2, when closing arguments were scheduled to begin, prompting Senior U.S. District Judge William Walls of the District of New Jersey to ask, “How are you Mr. Lowell?” according to a transcript.

Lowell asked for a sidebar, and responded, “I don't know what's inside me but after an hour and 15 minutes or so of sleep last night, I was awakened to take care of issues and I have been doing that all since then.”

“I have not been able to get back to sleep,” Lowell continued. “I saw urgent care this morning. Either it's the onset of the flu or I have a very bad stomach virus. So I have taken something to stop my having to run out…I would like to power through.”

He added, “I don't know if I can get past this, but there's no reason to stop everybody else from doing theirs … But, I might tell you at twelve or one o'clockI'm finished and I will let you know.”

So basically, it sounded like the worst possible way to wrap up a huge trial.

But power through he did, sticking it out all day in court.

Assistant U.S. Attorney J.P. Cooney went first with a solid closing.

“This is bribery and this is what bribery looks like,” he said, stressing Menendez's flights on private planes and vacations to the Dominican Republic, courtesy of Melgen. “In your deliberations it's not a choice between friendship and bribery. Senator Menendez and Dr. Melgen were friends who committed bribery together.”

The judge called on Lowell next, but here's why it's great to have co-counsel. Melgan's lawyers—Kirk Ogrosky of Arnold & Porter Kaye Scholer and Jonathan Cogan of Kobre & Kim—took his turn instead.

“They don't have any evidence of a bribe, no evidence of corruption, no evidence of a corrupt agreement, no evidence of conspiracy,” Ogrosky said. “It's nothing but speculation. They are asking you to speculate where your duty in this case is to find guilt beyond a reasonable doubt.”

After lunch, Lowell was still hanging in there when Cogan took over. “It isn't bribery unless they prove that Dr. Melgen gave the Senator something with the intent to make him take a specific official act,” he said.

“The openness of the relationship between Dr. Melgen and Senator Menendez undermines the government's claims of concealment,” Cogan continued. “What you have heard throughout this whole trial is that both Dr. Melgen and Senator Menendez were open about the fact that they were good friends.”

And then court was adjourned, and didn't reconvene until after a three-day weekend. By then, Lowell, who did not respond to a request for comment, had apparently recovered.

He gave a brilliant closing argument that kicked off with a paean to friendship worthy of “My Little Pony: Friendship is Magic.”

“I would like you all to bear with me a moment. I want you to close your mind's eye. I want to ask you a most important question, do you have a friend that you've had for five years, how about 10, how about 20,” Lowell said.

“Picture that friend. And I would like to ask you to ask yourself if you offered that friend a stay at a family house that you had had for years at the shore or if you offered to take that friend to that place in a new car you bought or if you were playing golf and you offered to pay that friend's greens fee along with yours and your son's, would you ever have thought that someone, sometime, would say that you were trying to bribe that friend of 20 years?”

He continued, “I'm not sure you have such a long term friend. But, if you do, then think of if your friend told you that he or she had a problem with a county agency, they wouldn't let their kid enroll in a school because they had arbitrarily divided the line two blocks away.

“Or she or he could not get a permit to put a construction on their house and there was something that you could do to help, that you could go and testify at a hearing on the house, that you could do something to say that that school district was not right, would you hesitate to do it for a friend? Would you need to be bribed by that friend to help if you could?

“The answer is obvious, because real friends do not offer their hospitality as bribes and real friends help when they can and not because they need to be bribed.”

Subtext: The feds are paranoid losers who probably have no friends and don't even know what it means to be a friend.

No wonder the jury hung.

Wait, You Mean He Actually Listened to the White House Counsel?

Donald Trump on Tuesday while pardoning Drumstick and Wishbone the turkeys: “They'll join Tater and Tot, the two turkeys pardoned last year by President Obama.

“As many of you know, I have been very active in overturning a number of executive actions by my predecessor. However, I have been informed by the White House Counsel's Office that Tater and Tot's pardons under any circumstances cannot be revoked.”

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