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3/5/2019 Gaetz’s Cohen Tweet Could Bring Bar Discipline—Or Nothing
https://biglawbusiness.com/gaetzs-cohen-tweet-could-bring-bar-discipline-or-nothing 1/5
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Michael Cohen is seen leaving his court hearing.
Photographer: Peter Foley/Bloomberg
Gaetz’s Cohen TweetCould Bring BarDiscipline—Or NothingChris Marr - Bloomberg LawFeb. 28, 2019
• Of Florida Bar’s 4,000 investigations last year,275 yielded sanctions
• Rep. Gaetz’s tweet at Michael Cohen drew claimsof witness tampering
U.S. Rep. Matt Gaetz faces a number of potentialconsequences for his tweet at Michael Cohen on theeve of his congressional testimony, including publicreprimand, disbarment, and a congressional ethicsinvestigation. Or the whole thing could blow over.
The second-term congressman, Florida attorney, andvocal supporter of President Donald Trump so far facesa Florida Bar Association investigation and acongressional ethics complaint �led by a Democraticpolitical action committee.
Gaetz also faces public accusations of witnesstampering lodged by law professors and others afterhe asked Cohen publicly via Twitter whether his wifeand father-in-law knew about his girlfriends.
“I wonder if she’ll remain faithful when you’re in prison.She’s about to learn a lot...” Gaetz wrote in the Feb. 26tweet, a day before Cohen testi�ed before the HouseJudiciary Committee about his past work as Trump’sattorney.
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3/5/2019 Gaetz’s Cohen Tweet Could Bring Bar Discipline—Or Nothing
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Gaetz has since apologized on Twitter and deleted thetweet. His o�ce didn’t respond to a request forcomment.
Fewer Sanctions
The vast majority of Florida Bar investigations end withno sanctions, said Scott K. Tozian, a Florida ethicsdefense attorney who represents other attorneys inbar association disciplinary matters.
But Gaetz will need to convince the bar that he’sgenuinely sorry and won’t repeat the behavior withoutgrandstanding or trying to throw around the weight ofhis political o�ce, Tozian added.
“If he goes about it right, I don’t think his exposure isterribly great,” meaning he’s unlikely to be disbarred orsuspended from practicing law in Florida, he said. “Ithink it was incredibly moronic to tweet that, but that’sthe age we live in.”
Florida Bar statistics show the association investigatednearly 4,000 complaints last year, with 275 resulting insome kind of disciplinary order, including 42disbarments and 129 suspensions.
The bar’s process calls for sending Gaetz a letterseeking a response within 15 days, Tozian said, and theprocess could end there if the congressman and hislawyer handle the response well.
But Gaetz shouldn’t assume he’s safe from sanctionsjust because he’s a House member, nor assume that hewon’t need his law practice since he’s serving inCongress now, he added— noting even formerPresident Bill Clinton faced suspension from theArkansas bar over the Monica Lewinsky scandal.
“Who knows where he’ll be two years from now?”Tozian said.
If the Florida Bar continues the investigation beyondthe initial letter, it could ultimately bring a case beforethe Florida Supreme Court, which decides attorney andjudicial disciplinary matters.
A spokeswoman for the bar declined to commentbeyond a statement that con�rmed the associationwas investigating.
House Sanctions
Gaetz also could face a range of potential responsesfrom the Democratic House leadership.
House Speaker Nancy Pelosi urged the House EthicsCommittee to closely monitor members’ social media
3/5/2019 Gaetz’s Cohen Tweet Could Bring Bar Discipline—Or Nothing
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and press comments “which may not be protected bythe speech or debate clause,” in a tweet on the sameday as Gaetz’s remarks.
She said members should remember their commentscould hurt the ability of committees to get truthfulinformation in hearings.
On Feb. 27, the Democratic Coalition �led a complaintto the O�ce of Congressional Ethics, accusing Gaetz ofviolating House rules by “attempting to obstruct justiceand intimidate a witness.”
The House also has procedures for reprimanding,censuring, or even expelling a member, althoughthey’re used relatively rarely.
‘Intent’ Needed
If federal prosecutors hope to charge Gaetz withwitness tampering, they’ll have to be prepared to provethat tampering was his intent when he tweeted atCohen — not just that his tweet had the potential tointimidate the witness.
A pair of relevant federal statutes—one dealing withwitness tampering and one dealing with obstruction ofa congressional proceeding—both require theprosecution to prove the tampering or obstruction wasintentional, said Scott Grubman, an Atlanta attorneywho defends white-collar cases and previously workedas an assistant U.S. attorney.
“Rep. Gaetz could, and likely would, argue that he wasengaged in lawful, constitutionally-protected conduct,and that his intent was simply to encourage Cohen totestify truthfully,” said Grubman, a partner at ChilivisCochran Larkins & Bever LLP.
To contact the reporter on this story: Chris Marr inAtlanta at [email protected]
To contact the editors responsible for this story: JohnCrawley at [email protected]; RebekahMintzer at [email protected]
Read it �rst on Bloomberg Law
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