Was this a crime?

Newspapers and social media broadly characterized Gaetz’s tweet as a “threat” to Cohen, formerly President Trump’s personal lawyer, and it’s a felony to issue a threat meant to influence, delay or prevent a witness’s testimony before Congress.

Gaetz’s tweet was no doubt obnoxious and foul, but was it criminal? Here is how a federal prosecutor would approach that question.

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Prosecutors allege particular crimes and at the end of the day must march through the elements of the relevant statute and prove each one beyond a reasonable doubt. In this case, that means 18 U.S.C. § 1512 (b) — it’s not the only possibly applicable statute, but it’s the most likely one — which makes it a felony to, in pertinent part, threaten or intimidate someone with intent to influence, delay or prevent their testimony in an official proceeding, such as Wednesday’s congressional hearing.

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The first tricky question is whether Gaetz’s conduct amounted to a “threat.” Gaetz strongly denied that it was, while also apologizing in a subsequent tweet. One might also argue that it was not a threat because Gaetz had essentially pulled the trigger. He embarrassed Cohen with allegations of extramarital affairs; the sting was delivered, so no threat remained.

Maybe. But look closely at that last sentence: “She’s about to learn a lot.” A reasonable interpretation is that Gaetz or someone else was poised to supply lurid information if Cohen proceeded with his testimony.

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The next pivot point is Gaetz’s intent. Arguably, he was just letting off steam and seeking to score political points, as occurs in our contemporary, debased political debate every day. Could a prosecutor really prove beyond a reasonable doubt that his intent was to influence or delay Cohen’s testimony?

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Tough call. Clearly this was more than conventional rough-and-tumble speech. And Gaetz’s initial characterization — that he was simply challenging “the veracity and character of a witness" in "the marketplace of ideas” — was so far-fetched as to undermine his own defense.

And because Gaetz is a member of Congress, a special potential defense arises. The Constitution includes a speech or debate clause providing that federal legislators cannot be penalized (the Constitution used the word “questioned”) “for any Speech or Debate in either House.” In actuality, however, the speech or debate clause provides no protection to Gaetz’s comment. It covers only “legislative acts.” Statements to the press, for example, do not qualify, and Gaetz’s tweet is even further afield than that from a normal legislative act or function.

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Finally, federal prosecutors often will decline to charge otherwise provable crimes for discretionary reasons. Here, for example, we have a single offending quote in the context of a particularly contentious moment in the Trump-Russia probe. A prosecutor might well conclude that it’s not worth the candle to make a federal case out of it.

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In the hours after the Gaetz tweet, I discussed whether he would be charged with several other former U.S. attorneys. Most but not all were disinclined, some because of the potential intent problem, others for reasons of prosecutorial discretion. But the debate was robust.

To my mind, Gaetz’s conduct satisfied the statutory elements of 18 U.S.C. § 1512 (b). Moreover, given his powerful perch, it more strongly presented the evil the statute was designed to prevent. Put otherwise, a threat from Gaetz is more effective and imposing than one from a nameless opponent. On the other hand, the political system arguably provides the most fitting remedy, namely the opportunity to vote Gaetz out of office.

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It’s a close case. But that brings into play a final federal prosecutorial consideration, namely the need to be properly cautious about deploying federal charges, which can be ruinous. That means the tie goes to the defendant.

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In the fantasy reenactment of my former responsibilities, Gaetz barely skates out of legal trouble, never knowing how close he came to a serious criminal charge.