Matt Gaetz Has Little New to Fear From the Guilty Plea by Florida Associate Joel Greenburg to Federal Crimes

AP Photo/Phelan M. Ebenhack

If you believe the reporting of the media and left-wing legal pundits, Matt Gaetz has packed his toothbrush and razor in anticipation of the FBI showing up at his door any day now to haul him away for sex crimes.

Unsolicited advice to all media:

When a criminal defense attorney conducts a press conference on the courthouse step and pontificates about all he has accomplished on behalf of a client who just pled guilty to multiple federal criminal offenses, understand that the only audience the criminal defense attorney is addressing is other defendants or potential defendants whom he hopes will call and retain his services.

He’s not talking to the prosecutors, he’s not talking to the Judge, he’s not talking to the public, he’s not even talking to his client.  His message is all about getting his next payday.

That is what Joel Greenberg’s attorney, Fritz Scheller, did yesterday outside the federal courthouse in Orlando after Greenberg pled guilty to six federal crimes as part of a plea agreement with the government.  What he said about Greenberg’s case is largely meaningless to Greenberg’s case.

Why shouldn’t he?  The microphones and cameras are there, and there is no one to fact-check what he says.  His only concern is that the “accomplishment” just achieved inside the courthouse is broadcast far and wide to anyone with a healthy bank account balance who might be facing similar problems.

Greenberg is a friend and political associate of Florida GOP Congressman Matt Gaetz.  Greenberg pled guilty to six counts of violating federal law, including having engaged in sexual conduct with a 17-year-old girl as part of an online “Sugar Babies/Daddies” operation where young women engage in sexual relations with older men in exchange for a variety of financial rewards.  Rumors are that Greenberg has been cooperating with the FBI and prosecutors and that he has implicated Gaetz in the allegations of sexual conduct with the same underage girl.

The Greenberg plea agreement is a remarkable piece of work.  A typical plea agreement drafted by a federal prosecutor can be anywhere from 16 to 20 pages long — sometimes a few pages longer depending on the number of offenses charged, and the number to which the defendant is pleading guilty.

The format varies from district to district, as there is no standardized form or format used nationwide. There are specific provisions and specific language that must be included in every plea agreement in order for it to meet the requirements of the law.  I used the same basic format for 23 years, substituting out specific provisions for new language from time to time due to changes in the law or DOJ policy about what must be included in every plea agreement.

The provisions that are unique to each plea agreement — the specific sections that are written by the prosecutor and are unique to each individual case — are ones describing the charges in the indictment, the charges to which the defendant is pleading guilty, the elements of those charges, the potential maximum penalty for each charge to which the defendant is pleading guilty, and the factual basis for each of the charges to which the defendant is pleading guilty.  Most of the remainder of the plea agreement is “boilerplate” language that is the same in every case, including the language about “cooperation.”

Not every agreement includes a cooperation provision, but when a prosecutor inserts a cooperation provision the language of that provision is standard.

The fact that there is a cooperation provision doesn’t mean there will actually be cooperation that meets the language of the agreement, nor does it mean the defendant will actually qualify for a benefit from any such cooperation.

By the same token, the absence of a cooperation provision in an agreement doesn’t mean the defendant is not cooperating.  It just means that the intent to cooperate isn’t a term upon which an agreement has been struck.

The fact that some counts were dismissed is almost always reported in a misunderstood fashion.  Greenberg is pleading guilty to one count in each of six categories of criminal conduct.  He is pleading to one count of sex trafficking, one count of producing a fake identification document, one count of fraud, one count of ID theft, one count of stalking, and one count of conspiracy.  For purposes of sentencing, all his criminal activity will be before the court, not just his actions involving these individual counts.  When someone pleads guilty to one count of fraud, all their fraudulent conduct — including the aggregated loss amount — is considered by the court for purposes of sentencing.  There is no “benefit” to the defendant in having all the other fraud counts dismissed, except for the minor financial benefit of not having to pay the $100 “special assessment” for each count of conviction. By pleading guilty to six charges out of 33 total, Greenberg is saving $2700.

What is remarkable about the Greenberg plea agreement is that, from start to finish, it is 86 pages long — and 62 pages of the document recount the facts of Greenberg’s criminal conduct. In 30 years of practicing criminal law in federal court, I have never seen a plea agreement even remotely close to this in terms of the level of detail with which the defendant’s criminal activity is described. Most of the commentary I heard and read yesterday from other former federal prosecutors in the media noted the same thing.

The left-wing legal pundits all jumped to the same conclusion — the reason for having done this was to make it clear to Matt Gaetz and his attorney that “We have the evidence we need to indict you.”  As one of President Trump’s biggest defenders in Congress, Gaetz is a surrogate for them to channel their anger towards over the fact that no path to charging President Trump with a crime was ever found while he was in office.

But my first reaction in reading the 62 pages of facts about the long-standing and extensive fraudulent conduct of Greenberg was “How would this guy ever stand up to cross-examination as a cooperating defendant?”  My second question was “If I was the prosecutor, why would I ever want to create this “road map” of his fraud which will be used to cross-examine him?”   Evidence of his criminal activity would be provided to any defendant he might testify against, but there is no obligation for the government to write out a detailed summary for use by the defense in cross-examining Greenberg.  This document, in the hands of a skillful defense attorney, will be used for hours of cross-examination of Greenberg in front of a jury.

My conclusion is that the government doesn’t have any intention of ever putting Greenberg on the stand to testify against anyone.

The 62 pages were not necessary to the plea agreement. The purpose of setting forth a factual basis for the plea is to inform the Court that the government has sufficient evidence to prove each charge to which the defendant is pleading guilty and that the defendant admits that the facts as set forth in the agreement are true.  There is no purpose served by writing a novella version of the facts supporting the guilty plea.

So why did the prosecutor do what he did?

I think the pundits are just playing to their audience with their “It’s all about sending a message to Gaetz” pontificating. If the prosecutor has the evidence he needs to charged Gaetz, then he has it and the 62 pages of facts didn’t change that.  The prosecutor could simply describe the evidence to Gaetz’s attorney in discussions about a pre-indictment guilty plea.

I don’t see the prosecutor trading much of anything in exchange for Greenberg’s cooperation if all the government gets in return are charges against another person(s) for having sex with a girl who was 17 — but was only a couple of months short of her 18th birthday as the plea agreement suggests, especially when there seems to be a strong case that the other persons were not aware of that and the girl herself told people she was 18.

The more likely reason for writing the facts in this fashion stems from the fact that in South Florida, this is a very high-profile public corruption case.  The Tax Collector’s office under Florida law has extensive tax and law enforcement powers — much broader than is probably appreciated by outsiders from the title of the office alone.

The purpose of detailing Greenberg’s illegal conduct in such detail in a public document certain to get very wide distribution is to make it clear to other public officials that their misconduct or criminal actions while in office can and will be exposed by the tools available to federal law enforcement.  They have the text messages, they have the VENMO transactions, they have the credit card transactions, they have cell phone records, etc.  The conduct can be pieced together with the electronic paper trail, and when finished this is what it looks like.

Matt Gaetz doesn’t have anything more to worry about after the Greenberg guilty plea than he had to worry about before the Greenberg guilty plea.  The prosecutors don’t need Greenberg’s testimony — they have documentary evidence.  They can show Gaetz’s travel and spending, and they can match it up with Greenberg’s travels and spending — along with the travels and receipt of money by the women involved.  The girl’s age is a matter of public record — her birth certificate.

Either she testifies she had sex with Gaetz for money and he knew she was 17 — or she doesn’t.  Greenberg’s cooperation isn’t a substitute for that.