Published May 17, 2021
Elie Honig:
Hey, folks. Before we get started with today’s episode, I have some news to share with you about the Third Degree Podcast. Beginning the week of May 24th, the Third Degree feed, this feed where you’re listening now, will feature audio of my weekly notes to the Cafe community where I analyze news at the intersection of law and politics. We’ll be dialing back the current Monday, Wednesday, Friday format a bit because we’re turning our attention to a brand new podcast. I’m going to tell you now this thing will blow your mind when you hear it. I don’t want to say too much at the moment, but it draws on my experience as a prosecutor in the Southern District of New York. I can’t wait to tell you more about it in the coming weeks and I can’t wait to drop it. I can’t wait for you to hear it. So thanks for listening. As always, please keep sending us any thoughts and questions. You may have to letters@cafe.com.
From Cafe and the Vox Media Podcast Network, this is Third Degree. I’m Elie Honig. I’ve cooperated some bad, bad people. Drug traffickers, crooked public officials, fraudsters, home invaders, mobsters, and yes, killers, but never, never a child sex trafficker. I can’t say ever had a specific chance to do that, to cooperate a child sex trafficker. I only did a few child sex abuse cases. They were all horrible, of course, and there was really never any reason to consider cooperating any of these guys because they generally worked alone and had no useful information to give. Well, hold on, you may be thinking, “Who are you, Elie Honig, to get high and mighty? You just said you flipped murderers.” You bet, and in many key ways, I’d prefer to cooperate a murderer over a child sex trafficker, because if your cooperator is reliable and backed up by other evidence, more on this in a bit, I’ve found that it’s a perfectly legitimate palatable pitch to a jury to say something like this.
“Sure, our cooperating witness killed people. You know who he did it with, or you know who he did it for? This defendant on trial here.” I’ve done it many times. It works. It’s fine, if you do it right. But child sex trafficking, it doesn’t quite work in that way. It is a remarkably difficult and risky thing for prosecutors to cooperate somebody who’s been charged with and apparently will admit to such a vile crime. And that’s why it’s such a big deal that federal prosecutors in Florida have given a cooperation agreement to Joel Greenberg. And that’s also a part of the reason why this is really bad news for Matt Gaetz. So let’s dig in. First of all, cooperation, what is it and how does it work at the federal level? Generally speaking, there are two of guilty pleas. You have your straight plea agreement where the defendant gets a bit of a break and in return agrees to enter a guilty plea, the parties both get something out of the deal, and they both go their separate ways.
The second kind of guilty plea is the cooperation plea. Now, this is a much longer and more involved process. Practices differ a bit district by district, but the fundamentals are the same. At the Southern District of New York, where I used to work, we were hardasses about cooperation. The Middle District of Florida is similar. I actually happened to work a case with that district. This is the district doing the Joel Greenberg case. In both districts, cooperating witnesses have to admit everything, everything they’ve done, and then they have to plead guilty. Yes, defendants actually sometimes plead guilty to more than they’re already charged with. Now, why would they do that, you ask? I had one guy who was charged with drug trafficking of marijuana, enormous shipments of marijuana. He ended up pleading guilty to a murder. Why though, you would ask? Isn’t that self-defeating?Doesn’t that lead to a higher sentence?
The answer is almost never, because if a person cooperates successfully, they get what’s known as a 5K letter from a prosecutor, which is a letter to the judge at sentencing saying, “Hey judge, this guy cooperated. Here’s all the crimes he committed. Here’s all the benefit he gave us.” Defense lawyers will tell you, one defense lawyer I knew called that the golden ring, the single most powerful thing any defendant can have at sentencing. Now, some districts will do a cooperation agreement to a specific number. Not at the SDNY. We leave it open-ended, the sentence is entirely up to the judge, and I’ve seen enormous sentencing breaks based on that 5K letter, that cooperation letter. One mobster who I prosecuted and cooperated, Michael DeLeonardo, this is public, pled guilty to decades of crime, extortions, and even to participating in three different murders, but he got an ultimate sentence of only three and a half years.
Why? How could that be? He helped us put away over 80 other mobsters and solve about a dozen other murders. Now, people may not like it. I know, it doesn’t sound great, but it’s a cold, hard calculus. It’s the reality of the federal system. It’s transactional. It’s not pretty, but if you want to make big cases in the federal system, you have to deal with cooperators. This isn’t TV where everything is solved by lab magic or profilers or blood spatters. There’s no way around it, this is the business of cooperation. Now, do you just cooperate anybody? Absolutely not. Do you cooperate people based on a hunch or based on thinking they’re telling the truth or believing them just in your gut? That’s part of it, but there’s much more, which brings us to the second point, corroboration.
Corroboration basically just means backup, and you do not cooperate any cooperating witness, nevermind a guy like Joe Greenberg, who is faced with such serious crimes, unless you have a mountain of corroboration. If I was prosecuting Joel Greenberg, I would take absolutely nothing on faith. I would look to back up every single factual statement that he made. Where could that come from? Where do prosecutors get corroboration? Really almost anywhere. Typical examples, bank records, financial records. Those will play into this case. Payments to some of these women. Texts or emails obviously are very powerful, especially if you have texts or emails with the person you’re cooperating against. Tapes are about the best possible corroboration. If there are wire taps or if someone wired up and made what we call consensual recordings. There doesn’t appear to be any of those in this case, but we don’t know.
Other witnesses are important. You want to hear if other witnesses corroborate or support what the cooperator says here. We know that prosecutors are talking to an ex-girlfriend of Matt Gaetz, and I’m sure other people as well. I’ll just tell you a quick aside here. One of the best pieces of corroboration I ever got was we were investigating a murder where a group of essentially hit men traveled down from Massachusetts to do a murder in the Bronx, New York. And a cooperator came in and said one of the guys in the group actually stayed at some hotel near New York City the night before. And so we scrambled and tried to find any record we could of that. Theoretically, there would be a record. And miraculously, it turned out we had a record from the Rye, New York, the town Rye, the Rye Marriott, showing that the night before the murder, one of the members of the hit team had stayed at that hotel in Rye, which is just a few miles away from the Bronx, and he incredibly paid for it with his own credit card in his own name. That is strong corroboration.
Now, with Joel Greenberg, there’s no such thing as too much corroboration. If Joel Greenberg tells me, I don’t know, “We partied at a pool and somebody did a belly flop off the diving board,” I’m sending an FBI agent out to go make sure that there is a pool there and that there is a diving board there. I’m only partially kidding here, but you get the picture. You want to, you need to corroborate a guy like Joel Greenberg in every possible sense. Obviously, the main story points are more important than the fine details here and it’s impossible to corroborate every aspect of a cooperator’s testimony, but you have to have enough indicators, enough fence posts, enough bankable points to support the testimony as a whole.
And this is particularly important here for Joel Greenberg, because not only is he charged with sex trafficking of women minor, but he’s also charged in a completely separate count with making up a false story about a person who was a political opponent, falsely accusing that person of pedophilia, which is exactly what Matt Gaetz or anybody else who may get charged here based on Joel Greenberg’s information is to say. Matt Gaetz’s office has already essentially said this. They already said, “Well, Joel Greenberg falsely accused someone of pedophilia once.” Side for me, he did, and then Matt Gaetz’s people are saying, “So he’s just going to do the same thing to us.” So that underscores the need for corroboration with a guy like Joel Greenberg even more than with your typical cooperator.
So I feel safe drawing this conclusion, either the Middle District of Florida federal prosecutors have Joel Greenberg backed up like crazy, or they’ve made a big, big mistake, which brings us to the third topic today, Matt Gaetz. Now, Matt Gaetz has, of course, steadfastly, angrily denied any and all wrongdoing.
It is a horrible allegation and it is a lie.
He has not been charged with anything. He is entitled to the presumption of innocence. And I have to say this, I truly do not say this in a rote disclaimer way. It really does apply here. We just don’t know. Anything can happen. But we do have a lot of important information and indicators now. Let me boil down what this means for Matt Gaetz. I cannot see any plausible way that competent federal prosecutors are going to take the extraordinary, difficult, costly fraught move of cooperating Joel Greenberg and then do nothing with his information. I cannot imagine any half decent prosecutor would cooperate Joel Greenberg unless the prosecutor was absolutely confident that the info would be reliable enough and valuable enough to charge somebody else. And not just anybody else. This needs to be a major valuable, worthy target given how bad of a guy Joel Greenberg is.
There could be surprises. Maybe the Feds have Matt Gaetz in their sights. Maybe it’s somebody else we haven’t heard of. Maybe it’s Matt Gaetz and other people. Maybe it’s just other people. It may be on sex trafficking of a minor, or it may be for other charges. It may be for multiple combinations of charges. But I’ll tell you this, for sure, when I was a supervisor at the Southern District of New York and then at the New Jersey Attorney General’s office, if one of my unit members, if somebody I was supervising came to me one day and said, “All right, boss,” they didn’t call me boss, “but just play with me here, “all right, boss, we’ve got this case. We’ve got a really, really bad guy. He’s actually a child sex trafficker. We’re going to sign them up as a cooperator. He might get a big break and we’ve got his information, but I’m not really sure we’re ever going to use it to charge anybody.”
I would have said, “Are you nuts? Have you lost it? We don’t do things that way.” I’ve never even had anyone propose this to me, by the way. When someone makes a pitch inside any prosecutor’s office that I’ve ever been a part of to sign somebody up as a cooperator, especially a bad guy, the two questions are, can we bank on him, and how will we use his information? And if you don’t have answers to those two questions, then you do not follow through with cooperation. If and when federal prosecutors in Florida do finalize their cooperation agreement with Joel Greenberg, which is reportedly to happen today on Monday, then you know they will have answered those two questions. You know they will have made a decision, not an easy one, that they have enough that they can bank on Joel Greenberg and that they intend to do something else with his information. Thanks everyone for tuning into this episode of Third Degree. Stay with us on this feed and as always send us any thoughts, questions or comments to letters@cafe.com.
Third Degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Separ. The senior producer is Adam Waller. The technical director is David Tadashore. The audio and music producer is Nat Wiener. And the Cafe team is Matthew Billy, David Kurlander, Sam Ozer Stanton, Noah Ozuli, Jay Kaplan, Jeff Eisenman, Chris Boylan, Sean Walsh, and Margo Malley.
