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FILE PHOTO: Representative Matt Gaetz, (R-FL), speaks during a hearing in the Rayburn House office Building on Capitol Hill, in Washington, U.S., July 29, 2020. Photo by Graeme Jennings/REUTERS

Josh Barro and Ken White discuss reports of a federal investigation into Congressman Matt Gaetz. What are the legal issues here? Was it smart for Gaetz to give a prime time interview about it on television? And why was this news apparently leaked? Plus: the Trump campaign set some donors up for recurring donations in a way that was dense and confusing. Is that fraud, and could some donors have a good case to sue the campaign? 

Recently, the DC Circuit Court of Appeals set a standard for pretrial detention for those arrested in connection with the Jan. 6 insurrection at the U.S. Capitol. How’s that working out? Due to a filing error, we know prosecutors might be close to a plea deal with at least one person. Was that accidental filing a major blunder?

Read the condensed transcript below:

Josh Barro: There was a New York Times story that the Trump campaign and associated entities refunded over 10 percent of the funds they raised through WinRed in 2020. That's the online fundraising platform that's the conservative answer to ActBlue. Many of the refunds were driven by a practice where donation pages had pre-checked boxes to turn a one-time contribution into a monthly or a weekly contribution, or that doubled the donors' initially intended contribution. The Trump campaign did not invent this practice, but it used it unusually extensively, often with dense language that clearly confused a substantial number of the donors. Some of them spoke with the New York Times about their irritation and having given more than they intended. In some cases, they actually overdrew bank accounts. So Ken, is this fraud?

Ken White: Well, it sure tastes like it, doesn't it? You've got a situation here where unless you read all the fine print, you don't realize that you're actually going to be donating possibly several times more than you intended and you might wind up not being able to pay the rent. It's probably more easy to prove this as a civil or administrative violation of some sort. I know that if this were done in effect on paper, then it's the sort of thing that the Federal Trade Commission or the Postal Inspectors might go after and it's kind of the thing that I used to prosecute people for on occasion. It's a little trickier to do as a criminal case but I think that if you got a smoking gun showing that these people knew this was for a deceptive purpose, you could do it. I think that's a pretty uphill battle, though. I think it's more likely a wrong with a civil or administrative remedy.

Josh Barro: So if there would be a civil or an administrative approach, I assume if you had a civil lawsuit, you'd have to show damages. Most of these people did not have a lot of damages because they received refunds if they asked for them. I guess you had some people who had to pay some overdraft fees, [but] that's not going to be a really large amount of damages. So is this something that plausibly could be brought as a civil action? Would there be enough available to be recovered?

Ken White: You might find some sort of creative way to do it under a federal statute where attorneys fees are provided for, so that gives the incentive to sue and it's a request for injunctive relief. However, I think it's more likely to be something like possibly the Federal Elections Commission or some other agency with some sort of administrative power that would have the ability to impose some sort of penalty.

Josh Barro: But is this actually against FCC rules? One of the defenses that the Trump campaign offered is that they're not the only people who have done this. Even sometimes Democratic groups have done this. They haven't done this on anything like this scale. But it wasn't clear to me that while this was a skeevy practice and there were some sources in the story saying that banks [and] credit card desks that were dealing with chargebacks and complaints... that these Trump donations were making up somewhere between one and 3% of all of those complaints on all credit card usage in the whole country toward the end of this campaign. It wasn't clear to me that this was actually a campaign finance violation that the FEC could do anything about.

Ken White: It's not completely clear to me, either. I think it's something though that bears close examination by people who are very familiar with the FEC's somewhat Byzantine regulations. And if it's not, then it's something that certainly should be: either the subject of a federal law or some sort of regulation, basically saying that you can't use deceptive practices likely to mislead in terms of important things like how much they're donating, or how much might be withdrawn from their account.

Josh Barro: Are there First Amendment limitations in the government's ability to regulate those sorts of practices? I mean, there are First Amendment limitations on the government's ability to regulate political speech. There's a line of Supreme Court decisions that allow limits on the amounts of contributions but a lot of other things cannot be restricted. So, could you have a rule like no recurring donations? I imagine that some campaigns might object and say that interferes with our ability to raise money and, therefore, for our donors to speak through their donation to the campaign so that we can can engage in political speech to support the candidates that they support.

Ken White: Well, the very highly controversial Citizens United Supreme Court case did lay down a fairly broad range of donation activities that are protected by the First Amendment and I think that something as broad as 'no recurring donations' might violate the First Amendment under that interpretation. But I don't think that regulations that required things like having it posted in a particular way in a particular font with a particular level of clarity, if they're going to be withdrawing more than once your account, that would certainly pass muster. So generally, you would not be able to regulate, for instance, whether political donation solicitations are misleading in the sense that the candidates' policies are bad or that they're lying about their opponent. But you would be able to regulate things like whether the format of the solicitation is misleading as to how much money you're really going to be giving.

Josh Barro: Yeah, and I would note there is a sort of parallel existing regulation that has to do with political material. They have to disclose who paid for it, or what committee paid for it anyway, and then that disclosure has to be put inside a box that is designed to highlight it. That's why you always see on political mailers there's a box [that] says inside, you know, "paid for by friends of whoever." Unfortunately, Ken, we're about to have this show’s first foray into age of consent laws.

Ken White: Oh, joy.

Josh Barro: So here is the opening statement of a New York Times story from last week: "Representative Matt Gaetz, Republican of Florida and a close ally of former President Donald J. Trump, is being investigated by the Justice Department over whether he had a sexual relationship with a 17-year-old and paid for her to travel with him, according to three people briefed on the matter." So, Ken, ordinarily sex crimes or state crimes, including statutory rape, if Gaetz were to be accused of that, and we don't know where the alleged sex act would have occurred, and what the age of consent was in that jurisdiction. But so what makes this a federal case?

Ken White: Well, first of all, I want to clarify in response to a listener question that it's not a federal crime to impersonate Roy Moore. So Gaetz is clear on that charge. However, there are a couple of things here where if these factual allegations are true, he would be in federal legal trouble. First of all, there are sex trafficking laws where it can be illegal to take people in interstate commerce when coercion or threats or violence is involved to get them to do so. Sometimes the government's definition of what coercion is can be fairly aggressive. They have in some cases even argued that payments or offering drugs, for instance, can be coercion. There's also laws that basically would apply to minors being transported in interstate commerce to the extent that they're going to do something illegal in one state or the other. So transporting for the purposes of prostitution could certainly be a violation and also under a very old law called the Mann act, transporting a minor for purposes of sex that's illegal in the jurisdiction can be a federal violation. The Mann act is an old law that has an unpleasant history, often used on somewhat archaic morals reasons and selectively to attack people of color. But in modern parlance, it could be used to go after Matt Gaetz if he, for instance, transported or arranged for the transport of a minor to a state where she was below the age of consent and had sex with her there. Some of the other things that he could face issues over would be if he was using campaign funds. It is, in fact, a federal crime to use campaign funds to transport teenagers for the purpose of having sex with them, and arguably, should be and then there all sorts of crimes flowing from that: false statements to the government, and so on.

Josh Barro: So to drill down on a couple of those things, it's a federal crime to use campaign funds for any personal purpose, right? So if it was a campaign finance violation, the sex angle would be sort of incidental, right? It would happen to be this very lurid thing that he's accused of doing but that would be that would be in the same bucket as any kind of personal use of campaign funds?

Ken White: Sure, although, defendants in campaign finance cases often tried to make some sort of argument that something was actually plausibly for campaign purposes, and unless it's a campaign to get hired by a sex offender organization, I don't think that transporting a teenager for sexual purposes is actually going to be for campaign purposes.

Josh Barro: So Matt Gaetz made an appearance on Fox News' "Tucker Carlson Tonight" to discuss this reported investigation into him that was reported in the New York Times and I'm sure that you as a defense attorney were not thrilled about the prospect of somebody seeing it reported in the New York Times that they were the they were being investigated for a purpose like this and then running on national television to talk about it. But before we talk about the reckless aspects of him doing that, I did find in the interview there seemed to be two fairly specific denials that he was making, that would seem to go at some of the possible areas of legal exposure that you described here. One thing is that he wanted to make clear that providing for flights and hotel rooms for people you're dating who are of legal age is not a crime. You talked about the the sometimes expansive definition of coercion, we talk about these federal laws restricting interstate prostitution activity — that seems to be basically denial that he was engaged in anything that could could be related to prostitution. The other is that he denied that he had a relationship with a 17-year-old, and so we don't even really need to get into the age-of-consent questions. The Times specifically reported the age 16... but I will take that too, to imply that he meant that anyone who had a relationship with was 18 or older, so any of these issues specifically having to do with minors, that's also a denial. So in that aspect, do you see him like sort of denying what would be two key elements of at least some of the sex related crimes that he could theoretically be under investigation for here?

Ken White: Yes, in an extremely stupid and reckless way. He doesn't know what they have, he doesn't know exactly what they're investigating, and he doesn't know if these statements on the show are going to be put in a completely different light later under the light of other evidence, [i.e.] whether it's going to look in effect like consciousness of guilt that he's going on and bringing up these issues. So, it is stupendously reckless. It's one of those things where, as we often talk about on this show, where what's good politically may be catastrophic in court. Clearly this was a play to the base, his own base and Fox's base, although Tucker Carlson did not seem very pleased to be dragged into it with Gaetz's suggestion that he had dinner with one of Gaetz's girlfriends. But even if it is there, it's something that no lawyer would ever recommend and most lawyers would probably threaten to quit if their client did something like this.

Josh Barro: One of the reasons that Gaetz might have some indication of why the federal government might have interest in him is [that] a former associate of his (a former Florida politician named Joel Greenberg who was the tax collector in Seminole County north of Orlando) was himself indicted on sex trafficking charges related to activity with a 17-year-old girl and also with a 14-year-old girl. And so ... if you were an associate of somebody who's already under federal indictment, that seems like extra reason to be cautious about not going out and making additional statements about your own activity on national television.

Ken White: Oh, sure. It's just drawing attention to yourself. It's waving the red flag to investigators and prosecutors, and it's making it more likely they're going to spend more time and attention because particularly with the feds, defiant public statements kind of rile them up. Federal prosecutors and federal agents tend to have a certain level of entitlement and that level of entitlement is offended by public statements like this and by defiance. Fairly or not, it tends to get their backup and get them even more interested in pursuing you. Yeah, if you don't know the extent of what your friend's being investigated for... it's just incredibly reckless.

Josh Barro: Matt Gaetz says the real story is that he was being extorted — that he was approached by an attorney in the panhandle of Florida, formerly an official with Department of Justice, who wanted to raise some financing for an unrelated matter and basically insinuated that he could make this investigation go away if Matt Gaetz and his father, who was formerly a politician, would put up money for that. So I guess the first question is: Does this matter? Does that have any implication for his legal liability on this matter over which he might theoretically have been extorted, which he says he was being extorted over?

Ken White: No, it's not a defense to any substantive crime that he's being extorted over the crime. He might use it basically to do what I think he's done, which is muddy the waters and  create a cloud of confusion over exactly what's going on. But it's not legally or factually a defense. The key to extortion — as we remember from Michael Avenatti's case involving Nike — is: It's extortion if you don't have a claim of right to the money you're demanding in exchange for not revealing some information. So this guy, if he did this, and I think that's a rather big "if," has no claim of right to the money he's demanding in exchange for not saying things about Gaetz. So if it happened, it could be extortion, but that would not be a defense.


Josh Barro: Where I find it more plausible when Gaetz says that somebody is out to get him is about this having ended up in the New York Times. “Three people briefed on the investigation spoke with the New York Times” about the investigation. Now, that's not supposed to happen, or at least it's not supposed to happen from the Department of Justice. So does this sound to you like it's a leak from DOJ? And if so, do you have a thought on why this would have become public when ordinarily an ongoing investigation is not supposed to be public? Or is it possible that people who are familiar with the investigation for some other reason not because of actually conducting the investigation might be who is leaking about it?

Ken White: The nature of the leaks, the things that were being described  does sound like someone inside either the agencies or lawyers with the Department of Justice. The types of terms used and the knowledge about what was allegedly going on… and it's absolutely against the law. It's unethical. It's unfair, because it poisons the jury pool and it's really classically a way that the government attacks, punishes and makes life more difficult for people who have been charged or who are facing investigations. That said, it may be happening simply because nobody — almost literally — likes Matt Gaetz. And I think this sort of thing is more likely to happen with genuinely unlikable people. This is a guy who really rubs people the wrong way. He's popular with a certain segment of non-establishment Republicans and very unpopular with other segments of establishment Republicans, and certainly anyone to the left of that, and so it doesn't exactly shock me that a unethical and inappropriate thing is happening to a greater degree with aomeone who is just this widely despised.

Josh Barro: Wisconsin Governor Tony Evers has filed a motion in federal court seeking to recover attorneys fees from Sidney Powell, one of whose many, many failed election lawsuits was filed in an effort to stop the certification of Wisconsin's presidential election results. Evers seeks $106,000 in costs related to defending this case. Now, Ken, I thought this motion was odd because it's very brief. It's only a couple of pages, and it basically says: We've already explained why this lawsuit was meritless, and now we want fees because of its meritlessness. ...So did this look like a normal motion [and] a normal way to seek recovery of attorneys fees?

Ken White: Well, I mean, what's normal these days, Josh? … The reason the motion is short, I think, is that this is really a gut check for the judge. We've talked before on the show about how federal judges tend to be slow to swing the sanctions hammer, for better or worse (I often think for worse) and they're more likely to dismiss the case but give someone a pass on the sanctions, kind of split-the-baby type of thing. Here is sort of a historical level of wrongdoing: completely bizarre allegations, backed up by completely bizarre pseudo-evidence being used to try to overturn a presidential election. And I think their sense is that if a judge is going to do this because of these historical circumstances, it's not going to be because of what we put in our brief. It's going to because of the judge's gut check about the nature of the litigation. So really, you can make it 10 times as long and cite 10 times as many cases where sanctions were granted or not, and it wouldn't really move the ball. It's all down to: Judge, are you finally going to do something about sanctions? If not now, when?

Josh Barro: About a week and a half ago, a three judge panel of the DC Circuit Court of Appeals made a ruling that makes it harder to detain the capital rioters pending their trials. We've covered a lot of these decisions about pretrial detention. Judges changed them in both directions, either detaining people who had been arrested or letting out people who had been held for a while. Can you lay out what's the new standard? …

Ken White: You know, Josh, this has been widely reported as a new standard, but I don't think it is. I think it's just holding the government to the existing standard that perhaps is not policed well enough by the Court of Appeals. Here's what the court said: The presumption is that people are going to get bail and they're only supposed to be detained when the government can prove that they're either a flight risk or a danger to the community in a way that conditions of release can't mitigate. What the court said here is that they're putting too fast and loose with the dangerousness aspect. What the trial court said was: Well, yes, they're not charged with any violent crimes but they've said violent things before, and they were willing to break the law in order to undermine democracy. And what the court of appeals said is: No, that's not the way it works. First of all, you have to take more seriously and consider why, if they're supposedly so dangerous they can't be released, that they're not charged with any crimes of violence. And second, you have to look at the context when you're claiming that something is dangerous. They quoted language from a case saying that there there has to be a specific and articulable danger to the community, not just a sense that in general, someone's a bad person. And what they said here is that the danger here was related to this particular unique event on January 6, the risk posed by their opportunity to derail the Senate considering these votes, and that the government hadn’t made in a showing that they were likely to be dangerous in any other circumstance, that there were any other events coming up that they posed a risk of interfering with or anything like that. And I think the best indication that the Court of Appeals had a point there was that the government backed down and decided not to try to meet that standard on remand, they're not going to try to argue that their evidence is enough to meet that standard. So all of those points are actually supported by case law. They're just things that often don't get enforced, in part, because the standard of review is not very favorable, and in part because people rarely appeal to the Court of Appeals detention decisions.

Josh Barro: So this means that the government is no longer trying to detain “Ziptie Guy” Eric Munchel or his mom. Listeners will remember Eric Monchel’s defense, at least in some initial filings from his public defenders, [that] this was all mom's idea, and mom roped him into this, and he was following mom into the Capitol to make sure she didn't hurt herself too badly in her participation in the riot. So anyway, they will be out on bail pending their trials.

Ken White: Yes. And “it was mom's idea” is not in law (as in life) ever a defense that you can get away with. ....

This transcript has been condensed and edited.


Josh Barro, Ken White

Sara Fay