The investigation of Gaetz occurred during the tenure of former Attorney General Bill Barr — another example of how his department conducted nonpartisan investigations. Indeed, reports suggest that Barr avoided Gaetz during his tenure due to the investigation.
The Justice Department has long been criticized for leaks, including leaks tied to the Russian investigation. As a defense attorney, I have had to deal with such leaks that clearly are calculated to pressure defendants.
Of course, the Justice Department has also been criticized for speaking about cases that do not result in charges as shown by the James Comey press conference before the 2016 election. The Justice Department is not in the business of clearing subjects or addressing public controversies.
That is why Congress may have to step forward to seek confirmation of basic facts on the allegations against Gaetz. It has ample authority and reason to do so. If Gaetz is guilty, he would likely face criminal charges and probable expulsion from Congress. However, it has reportedly been under investigation for a year and the age and relationship with this girl should have been easy to confirm.
Of course, assuming the girl was underage, there can be complicating factors. For example, they may not have traveled together but she could claim that they arranged to meet on such trips. (So Gaetz’s suggestion of reviewing his travel records will not answer the legal question of facilitating or enabling such travel). Once again, however, such travel (and her status as a minor) must already be established. Gaetz insists that he knows of no such person. Period.
There are reports that the investigation of Gaetz began with a sex trafficking investigation of a third party. That larger case could also result in delays in the issuance of indictments.
Then there is the call that is being cited by Gaetz as part of an effort to extort. If the call was recorded by one of the parties, it is not clear why it cannot be released. Gaetz wants it released and presumably his father (who is reportedly on the phone) would agree. The other party is reportedly former Justice Department lawyer David McGee, currently with the law firm Beggs & Lane. McGee denies being part of any such conspiracy and says that he has no objection to the release.
The call is one area to test the credibility of Gaetz who insists that it will demonstrably show extortion while McGee insists that it was a harmless call with a concerned father. The written extortion offer is perfectly bizarre. Extortionists usually do not offer a detailed written offer, including a pledge to seek a presidential pardon for Gaetz. This is all part of a bizarre claim to be seeking the $25 million to free a captured former FBI agent.
If the call was orchestrated by the Justice Department, it is unlikely to release the transcript or the recording solely to address the controversy. (Gaetz’s father said that he wore a wire at the behest of the FBI). Indeed, absent an indictment, it may not be released. The only other avenue would be for Congress to seek the transcript or recording citing oversight and legislative authority. With the parties raising no objection to release, the only question would be law enforcement privileges and any privacy concerns if the girl’s identity is disclosed directly or indirectly. Yet, it is possible to address such issues through redactions or summaries.
What is curious is that Gaetz is still, after a year, reportedly a subject not a target in the investigation. If the prosecutors confirmed the girl was underaged and traveled with Gaetz or had a sexual relationship with him, he would clearly be a target. Obviously there is a tendency to keep the lower status as long as possible but I would have expected a grand jury submission after a year on such a relatively straight-forward case or at least a change in status for Gaetz.