Editor’s Note: Elie Honig is a CNN senior legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.
This needs to be said right up front about the pending Justice Department investigation of Rep. Matt Gaetz: there’s still a lot that we don’t know. He has steadfastly, even furiously, denied any wrongdoing. But the facts that have emerged – including new CNN reporting that federal prosecutors are attempting to obtain cooperation from Gaetz’s ex-girlfriend – seem likely to paint a bleak picture for Gaetz moving forward.
Joel Greenberg. Gaetz’s onetime pal and political ally Joel Greenberg – who faces a 33-count federal indictment, charged with crimes ranging from sex trafficking of a minor to bribery to identity theft to stalking – reportedly is cooperating with federal prosecutors and providing information about Gaetz’s conduct, including alleged encounters with women who were given cash or gifts in exchange for sex. Greenberg has until the end of this week to finalize any plea agreement with prosecutors.
On one hand, if Greenberg does turn on Gaetz, Gaetz will have ample basis to attack Greenberg and call his credibility into question. Greenberg would then have to admit extensive criminality as part of any cooperation agreement, and, should he do this, would have an incentive to try to reduce his own potential sentencing exposure by leading federal authorities to other targets. The big question, then – as it always is with cooperating witnesses – would be whether any information Greenberg might provide is corroborated by other, independent evidence. Which leads us to …
The ex-girlfriend. If I’m a prosecutor building a case around Greenberg, I’m not taking him at his word on any key issue; rather, I’m going to need independent confirmation of key points of his testimony. If the Justice Department obtains cooperation from Gaetz’s ex-girlfriend, then she might be the right witness to provide that crucial support. If her testimony is consistent with Greenberg’s, then prosecutors are on strong footing; if not, or if she refuses to testify and there are no other witnesses who can back Greenberg, then the case gets shaky. Crucially, the ex-girlfriend is believed to have knowledge of certain relevant financial transactions of which the FBI has obtained records, sources familiar with the investigation told CNN. Prosecutors, therefore, are sure to attempt to sit with her and review those financial records.
The receipts. We know that Greenberg has led federal investigators to at least some independent evidence that could be used to support his account of alleged wrongdoing by Gaetz. In a letter, obtained by the Daily Beast, Greenberg wrote that he and Gaetz paid for sex, including with a minor who was 17 at the time. A Gaetz spokesperson told CNN in a statement that “Congressman Gaetz has never paid for sex, nor has he had sex with a 17 year old as an adult.”
If Greenberg is in fact cooperating, federal prosecutors will work meticulously with him to identify any and all financial records and other evidence that could detail Gaetz’s conduct.
Gaetz’s own statements. The smartest thing that the subject of any criminal investigation can do is to shut up. Not Gaetz; within hours of news breaking about the investigation, he appeared on Tucker Carlson’s Fox News show and made statements that could come back to haunt him. At one point, Gaetz acknowledged the existence of a woman who might be relevant to the case, and said that he had gone to dinner with her and Carlson at some point. Carlson quickly moved to distance himself, responding, “I don’t remember the woman you are speaking of or the context at all, honestly.” If the woman to whom Gaetz referred in the interview does become relevant to the case, it will be impossible for his lawyers to argue that he doesn’t know her or has never had a relationship with her.
The investigation. The Justice Department investigation dates back to 2020, when it was initiated under the Trump administration and then Attorney General William Barr. That matters, first, because it will be difficult for Gaetz to claim that he is the victim of a partisan “witch hunt,” to borrow a favorite phrase of former President Donald Trump. And the timeline undercuts Gaetz’s claim that the allegations against him are part of a broader scheme to extort him and his family. His claims that the extortion attempt began in March 2021, yet we know the criminal investigation predates that by several months.
The potential charges. Gaetz reportedly is under investigation for crimes including sex trafficking (he denies the allegations).
If federal prosecutors prove that Gaetz engaged not only in sex trafficking but in sex trafficking of a minor (as currently alleged in the indictment against Greenberg) – and, again, there still remains much that we do not know – that charge is one of the most serious in the federal criminal system, carrying a mandatory minimum of 10 years in prison. Federal authorities also reportedly are investigating whether he took gifts, including travel and paid escorts, in exchange for political favors and whether he shared drugs, including cocaine and ecstasy, with women during parties, as has been described to CNN by two women who attended several parties they said were attended by Gaetz over the past few years. Both spoke on condition of anonymity. (A spokesman for Gaetz did not respond directly to CNN’s request for comment but challenged the use of anonymous sources.)
The Justice Department investigation is ongoing, and it remains to be seen whether the evidence will be sufficient to support criminal charges against Gaetz. But the currently available public indicators should give him serious cause for concern.
Now, your questions:
Patrick (Oregon): Regarding the new federal charges against Derek Chauvin and the other officers, can federal charges be brought where there already have been state charges?
Yes. First, the state and federal charges are different. State prosecutors charged the defendants with murder, manslaughter and aiding and abetting offenses, whereas federal prosecutors have charged criminal deprivation of civil rights based on Chauvin’s use of excessive force, the failure of two other officers to intervene, and the failure of all four to render medical aid.
Second, the US Supreme Court in 2019 upheld the “separate sovereigns” doctrine. Under that ruling, the federal and state governments function as separate entities, and it does not violate constitutional double jeopardy principles for a person to be charged and tried separately in both federal and state courts.
Landon (Utah): Can Rudy Giuliani invoke attorney-client privilege to prevent prosecutors from obtaining or using documents seized from his home and office pursuant to a search warrant?
Yes, Giuliani can try to prevent prosecutors from accessing or using against him any documents that might be protected by attorney-client privilege. To that end, Southern District of New York prosecutors have asked the court to appoint a “special master” to review any seized documents for privilege and to keep those documents away from the team of prosecutors on the Giuliani investigation; Giuliani will have the opportunity to challenge any privilege determinations with which he disagrees. (Note that any documents containing communications between Giuliani and any client that relate to commission of an ongoing crime are not privileged under the “crime-fraud” doctrine.)
The SDNY set up a similar “special master” process after its search of another Donald Trump attorney, Michael Cohen, in 2018. Cohen filed several challenges to the special master’s privilege determinations, but lost on the vast majority of his claims. Giuliani’s attorney has said he will file a court challenge to prevent prosecutors from accessing privileged documents, though it is unclear what remedy Giuliani may seek beyond appointment of the special master.