Update: Gaetz has apologized and deleted the tweet.
A Republican member of Congress on Tuesday suggested without evidence that Michael Cohen engaged in affairs with multiple “girlfriends” and suggested his wife might cheat on him while he’s in prison — all on the eve of Cohen’s public testimony.
President Trump and his allies have camped out in a whole host of gray areas when it comes to obstruction of justice and witness tampering over the last two years. But this one from Rep. Matt Gaetz (R-Fla.) doesn’t appear to be nearly so gray.
Here’s Gaetz’s tweet:
First off, if any member of Congress were a candidate to tweet such a thing, Gaetz would be it. He has carved out a niche for himself in the House as one of its most controversial members, and he has unabashedly aligned himself with Trump on basically all things. He has regularly attacked special counsel Robert S. Mueller III’s investigation and suggested nefariousness in the Justice Department. To the extent that Gaetz is putting himself on the line by attacking Cohen on the eve of his public testimony, he’s playing to type.
But just how much trouble could he put himself in?
The Post’s Deanna Paul has written about potential witness tampering a number of times in recent months, including when Trump tweeted his own innuendo about Cohen’s family last month. The key is that the intent needs to be to intimidate, threaten or “corruptly persuade” another person with the goal of influencing their testimony or preventing it altogether.
As she noted, whatever the body of Trump’s tweets and public statements suggest as a whole, he often injects some ambiguity — e.g., by suggesting Cohen’s father-in-law should be investigated rather than outright accusing him of anything illegal. Trump could perhaps argue he’s venting or raising legitimate issues that just so happen to be lodged at a time when Cohen was preparing to testify against him.
But Gaetz’s tweet is more difficult to explain away. Shortly after it went up, he defended himself against the witness-tampering allegations by telling the Daily Beast’s Sam Stein that “it is challenging the veracity and character of a witness. We do it everyday. We typically do it during people’s testimony.”
Gaetz added: “This is what it looks like to compete in the marketplace of ideas.”
But this tweet wasn’t just Gaetz making an allegation about Cohen’s character. If he had stopped halfway through, perhaps this argument would hold water. What’s the most problematic is the second part, where he alludes to the possibility that Cohen’s wife will cheat on him while he’s in prison.
That is not an allegation, and there’s really no argument that it has anything to do with Cohen’s veracity or character; it’s a suggestion about something that could happen in the future that would seem very likely to rattle any normal man on the eve of one of the biggest days of his life.
We’re about to find out what Mueller’s thresholds are for obstruction of justice and witness tampering. But whatever they are, Trump is insulated because Justice Department rules say a sitting president can’t be indicted. That means Congress is the arbiter, and even if Trump would be convicted of witness tampering in a court of law, he could survive.
But Gaetz has no such insulation, and you can make a pretty convincing argument that his witness-related tweet is far less veiled than Trump’s have ever have been.