There’s an old Scottish saying: “may you live in interesting times.” That one seems tailor-made for our legal profession in the current political environment. Never before have so many issues related to criminal, civil, and constitutional law been in the news, in different ways, and with a different cast of characters every day.
Just a couple of weeks ago, for example, the issue of witness intimidation got out front and center for all of America to see. Witness intimidation is something one generally associates with the prosecution of hardened criminals. It brings to mind threats, often involving violence, against a person who is expected to testify against a criminal defendant. The mafia and gangs are famous for enforcing a code of silence via witness intimidation.
The law defining witness intimidation; however, is much broader and encompasses much more than just threats and violence. Any attempt to coerce or even “corruptly persuade” a person with relevant information against testifying completely and truthfully in an ongoing criminal, civil, or congressional proceeding commits a serious felony. 18 U.S.C. § 1512(b).
That’s why it was extremely surprising to see none other than U.S. Congressman Matt Gaetz send the following tweet on the evening of Michael Cohen’s congressional testimony before the House Oversight Committee.
The above tweet is textbook witness intimidation. Gaetz explicitly threatens Cohen with the exposure of unseemly details about his private life on the day before Cohen was well-known to be preparing to testify about crimes committed by the President of the United States while Cohen was his attorney. The ruthless attack on Cohen’s wife and his family and Gaetz’s implication that he was in possession of information intending to show that Cohen had had been unfaithful to his wife and therefore should fear to testify was remarkable.
Within 48-hours, the Florida Bar (of which Gaetz is regrettably a member), opened an investigation into his actions. Attorneys are held to an even higher standard than mere compliance with criminal law when it comes to avoiding the appearance of interfering with ongoing legal proceedings. Of course, the public commission of a felony unambiguously violates a lawyer’s code of ethics. Curiously, Gaetz’s supposed trap never sprung at the hearing itself, but follow through is not required to make a threat a violation of the federal witness tampering statute.
It would be a straightforward matter for a grand jury to indict Gaetz based on his grotesque threat directed at Cohen even before the testimony occurred. Some have raised the possibility that Gaetz could raise the US Constitution’s “speech and debate clause” as a defense to a witness tampering charge. Indeed, Gaetz hinted at some kind of constitutional defense by suggesting that he was engaged in the “marketplace of ideas” when he threatened Cohen. Such constitutional defenses are unlikely to succeed. First of all, it is straightforward that witness tampering, like conspiracy, extortion and other crimes that are committed primarily with words does not constitute free speech that is protected by the US Constitution. Moreover, the speech and debate clause, which protects congressmen from being charged criminally for their statements on the floor of the US House or the US Senate only extends to the official performance of a congressman’s duties. It is unlikely that a court would find that tweeting threatening remarks towards witnesses are part of a congressman’s duties.
It’s a remarkable commentary on how far the country has come in a couple of years that a congressman can openly commit a crime in full view of the public and for some reason expect to get away with it. But at the same time, Gaetz’s unbelievable action turned out to be like the 10th most scandalous story in a day’s news. The West Virginia Bar Association recently had to remove, that is “disbar,” a former Chief Justice of the West Virginia Supreme Court of Appeals based on his conviction for felonies involving misuse of government funds and false statements to investigators. By any measure, Gaetz’s crime is much more serious than what Alan Loughry did. Threatening a witness in an effort to prevent his truthful and complete testimony in a matter affecting the Presidency of the United States should certainly land Mr. Gaetz in prison for longer than Loughry.