The U.S. Court of Appeals for the Third Circuit recently held oral argument in United States v. Menendez, the high-profile criminal case against sitting U.S. Sen. Robert Menendez of New Jersey.

In this second trip to the court, Sen. Menendez appeals the district court's denial of his motion to dismiss the indictment on the grounds that the Speech or Debate Clause of the U.S. Constitution, Art. I, § 6, cl. 1, prohibits his prosecution. Sen. Menendez primarily casts the district court's analysis as distorted by a misunderstanding of the Speech or Debate Clause, i.e., legal error that calls for more favorable de novo review. In turn, the government defends the district court's understanding of the governing law and urges the Third Circuit to look only for clear error in the district court's factual determinations resulting in denial of the privilege. Thus, although the substantive issue is rare, the tactical choices by Sen. Menendez and the government are not. Sen. Menendez's choices offer useful examples of what works—and what does not—when an appellant is stuck with bad facts on appeal and seeks to shift the focus to a legal question.