Note From Elie is part of the free weekly CAFE Brief newsletter.

Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief

Become a member of CAFE Insider: cafe.com/insider

Dear Reader, 

We need to talk about Matt Gaetz. More precisely, we need to talk about how the Justice Department has botched the investigation of the Florida congressman. 

It seemed, back in early 2021, that Gaetz was in a heap of trouble. The Justice Department was deep into an investigation of Gaetz and his pack of Florida party bros who reportedly paid for young women to travel across state lines for sex at drug-fueled late-night ragers. Worse still, at least one of the women was underage at the time, which ratcheted up the stakes, politically and criminally, for all involved.

The forecast for Gaetz turned even bleaker when DOJ reached a cooperation agreement with Gaetz’s sick pal, Joel Greenberg. Greenberg pled guilty to a varied and twisted slate of crimes including sex trafficking of a minor, theft, fraud, and stalking. The feds also reportedly were talking to Gaetz’s former girlfriend and, it appeared, the underage victim. Making matters worse for Gaetz, financial records tied him squarely to the scheme. In May 2018, for example, he sent Greenberg two electronic payments totaling $900; in the memo for the first payment, Gaetz wrote “Test” and for the second he wrote “hit up ___” (with the nickname of a woman who had turned 18 just months before redacted). Greenberg in turn sent the same total, $900, to three young women. DOJ also was reportedly looking at Gaetz for witness tampering and obstruction of justice based on a phone call he had with his ex-girlfriend.

At that point, it seemed mostly a question of when, not whether, Gaetz would get a knock on the door from the FBI. But then: nothing, for months. 

In May 2022, however, we saw a strange but telling blip on the docket sheet. The judge on Greenberg’s case, who had agreed to several adjournments of sentencing, said he would not grant another delay unless prosecutors could show “extraordinary circumstances.” The Justice Department soon thereafter agreed to set a sentencing date for Greenberg, now slated for December 2022. As I wrote at the time, this was unusual because typically prosecutors ask (and judges agree) to delay sentencing until after a cooperator has completed his work. I noted that this development cast “genuine and growing uncertainty about whether a prosecution [of Gaetz] will ultimately be successful.” 

Turns out, my cooperator-gone-bad antennae were properly tuned. We’ve now learned that the prosecutors handling the Gaetz case have recommended against indicting him. (It’s possible that DOJ higher-ups will disagree, but it’s also quite rare for the bosses to overrule line-level prosecutors when they recommend against charging.) The primary problem, according to the Washington Post, was “credibility questions with the two central witnesses,” Greenberg and the ex-girlfriend. 

Well, no shit. Joel Greenberg turned out to be unusable as a cooperator. Who ever could have seen that coming?

Look: I’m no pearl-clutcher when it comes to cooperators. As a prosecutor, I flipped dozens of criminals, including guys who had done really, really bad things – killers, even. One of my cooperators had shot so many people that we had to list them all out on a piece of paper to get a semi-reliable final tally. We landed somewhere in the 30s. (It’s not quite as horrific as that sounds; this guy’s specialty was shooting people in the legs and butt to send a message, but he did kill three people, too). So, no, I don’t get all squishy about prosecutors enlisting bad people as cooperators.

But Joel Greenberg: that’s a tough one, even for me. The guy is an admitted child molester. He’s also a convicted thief, stalker, and liar; among other things, he falsely accused an innocent man who was running against him for local political office of… being a pedophile. Now imagine staking a case on Greenberg as your star witness. Even if the jury can somehow avoid retching their guts out at the guy’s child molestation, then they’ll have to decide whether they can bank on the word of a person who has already falsely implicated another person in the precise crime at issue.  

There’s no way in high holy hell I ever would have signed up a horror show like Greenberg unless I already knew, absolutely for sure, that I would use his information to make a case against another substantial player. Let’s play out this scenario. Imagine you’re a supervisor in a prosecutor’s office. (Don’t worry, no expertise required; this’ll be a common-sense exercise.) Now imagine a prosecutor in your unit comes to you and says, “Hey boss. I want to do a cooperation deal with this guy. He’s a child sex offender, he’s a serial fraudster, and he lies constantly.” You’d instinctively recoil, of course, but you’d focus on the bottom line: “Ok, well, how valuable is his information? Will we make a big case based on him?” Now, imagine your supervisee responds, “Well, I’m not sure. We might, or we might not. But let’s sign up the horrible guy as a cooperator first, give him a sentencing reduction, and then play it by ear from there.” Are you on board? No? Didn’t think so.  

Here’s the problem. Before any competent prosecutor signs up any cooperator, the prosecutor has to do their homework. You don’t give a criminal a chance at a major sentencing break unless and until you have done your diligence and concluded that the cooperator is reliable and supported by the other available evidence. And, importantly, you don’t hand out a cooperation deal until after you have already concluded that you’ll use that cooperator to make other cases against other substantial players. There’s a specific section on every standard internal cooperation memo where the prosecutor has to lay out how the cooperator’s testimony will be used, and who else will be charged based on that information. Any prosecutor who leaves that section blank, or fills it in with a casual “TBD,” shouldn’t be in the business. Cooperation deals are, after all, just that – deals – and not prosecutorial charity. 

I want to be clear on my criticism here. I don’t know what DOJ had on Gaetz, in the final calculation. Maybe they had a strong case that they chose not to bring; maybe it was a close call on which reasonable minds can differ; maybe they fell short. So I’m not here to second guess the apparent decision not to charge Gaetz. I’ll extend the benefit of the doubt.

But I do know this: it is unthinkable for any competent prosecutor to give a guy like Joel Greenberg a cooperation deal, and then do nothing of any real meaning with his information. You’re paying the price – by letting Greenberg slither away – and you get nothing in return, while Greenberg’s cohorts, including Gaetz, skate. 

Now, in all likelihood, Gaetz will escape untouched. Worse still, Greenberg stands to gain a major sentencing reduction because of his cooperation – the very same cooperation that DOJ prosecutors put to no meaningful use at all. That is an injustice, compounded. That is prosecutorial malpractice. 

Stay Informed,

Elie