Trump ally Matt Gaetz's tweet threatening Michael Cohen sure looked like witness tampering

The fact that Gaetz’s (now deleted) tweet was public, as opposed to caught on a covert recording, does not detract from its potentially criminal nature.
Image: Matt Gaetz, Paul Ryan
Speaker of the House Paul Ryan, R-WI, gets a "fist bump" from fellow member of the House of Representatives Matt Gaetz, R-FL, after Ryan was re-elected in Washington on January 3, 2017.Win McNamee / Getty Images file
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

Just when you thought America’s political discourse could sink no lower, Congressman Matt Gaetz took to Twitter on Tuesday afternoon to offer this pearl of wisdom ahead of former Donald Trump fixer Michael Cohen’s testimony in front of the House Oversight Committee: “Hey @MichaelCohen212 – Do your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if she’ll remain faithful when you’re in prison. She’s about to learn a lot.” The representative’s impressive impersonation of a mafia don aside, this public missive — especially given its timing — almost certainly constitutes witness tampering, a federal crime.

Federal law prohibits “tampering with a witness, victim, or an informant” (18 U.S. Code sec. 1512). In other words, it is a crime to knowingly intimidate, threaten or corruptly persuade or attempt to persuade someone to delay, change or back out of testifying in an official proceeding.

Gaetz denied that his tweet was meant to intimidate and has since deleted it and apologized.

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And yet, it would be a challenge for even the most creative defense attorney to argue that the message does not in fact constitute witness tampering in some form. First, federal law specifically includes Congressional hearings as the kind of official proceeding covered by the witness tampering statute. Second, Michael Cohen is plainly a witness set to testify in that official proceeding. Third, the language of the tweet connotes a sense of intimidation, threatening to “out” salacious personal information that would be embarrassing to Cohen, thereby damaging his relationship with his family.

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Finally, it’s hard to argue with a straight face that the tweet was not designed to, at a minimum, influence Cohen’s testimony. Indeed, Gaetz concludes his text with the ominous observation that Cohen’s wife “is about to learn a lot...” The not so subtle message, directed to Michael Cohen with the rest of the internet as witnesses, is if you don’t testify, your family will be sparred. Remember, Gaetz is a federally elected official.

Of course, this is not the first time Michael Cohen has been threatened on social media, presumably in an attempt to keep him from disclosing information about presidential misconduct. Trump himself issued a tweet in January that itself arguably flirted with witness tampering. At the very least, the fact that the president was accusing Cohen of lying seems like yet another example of presidential overreach and meddling with other branches of government, namely the judicial branch.

As a career prosecutor, I have encountered almost every variation on these kinds of communications. Whether attempting to impact a witness’s testimony or, more generally, attempting to influence the witness’s willingness to participate in the criminal justice process.

Hypothetically, if I caught one of my defendants, for example on a covertly recorded phone conversation, saying, “you know that guy who flipped on me, I want you to watch his father-in-law,” I immediately would do two things. First, I would have a law enforcement agent find the father-in-law and bring him to my office. I would inform him that our investigation had uncovered evidence suggesting he could be at risk and would discuss available security options. Once my office had done everything we could to ensure the safety of the witness and their family, I would turn to the business of drafting a criminal charge for witness tampering to be presented to the grand jury.

The fact that Gaetz’s intimidating tweet was public, as opposed to caught on a covert recording, does not detract from its potentially criminal nature. If you communicate a threat openly and publicly, it’s still a threat. It’s just a more confusingly stupid one.

Interfering with the truthful testimony of a witness is a crime designed to subvert one of the pillars of a civilized society: fair judicial, congressional and other official proceedings. If we are unable to fully and fairly litigate issues in these sorts of arenas, we simply cannot govern ourselves effectively.

While Gaetz might sound like a character out of “The Sopranos,” this is a serious problem. Witnesses often endure extreme hardships and personal upheaval in their lives. This is particularly true when their testimony involves possible crimes by the president of the United States of America and his allies. When political discourse crosses a line and becomes a criminal communication, it cannot just be shrugged off. The FBI should open an investigation to determine whether Congressman Gaetz should face repercussions for his actions, whatever their motivation.