Even Without the Sex and Drug Allegations, Matt Gaetz’s Nomination Should Have Been Doomed

In a report released today, the House Ethics Committee says it found “substantial evidence” that former Rep. Matt Gaetz (R–Fla.), President-elect Donald Trump’s first pick for attorney general, paid women thousands of dollars for sex, used illegal drugs, committed statutory rape, and accepted gifts that violated the chamber’s rules. Gaetz concedes that he “probably partied, womanized, drank and smoked more than I should have earlier in life” and that he gave money to women he “dated.” But he insists that he never did anything illegal, never exchanged money for sex, and never had sex with an underage girl.

Gaetz resigned his seat in Congress when Trump announced his nomination, which he evidently hoped would prevent the release of the ethics report because it meant the committee no longer had any jurisdiction over him. But the widely reported sex and drug allegations were a key factor in sinking his nomination. He withdrew his name just eight days after Trump’s announcement, saying he did not want to be “a distraction [from] the critical work of the Trump/Vance Transition.”

Given his scant legal experience, Gaetz was manifestly unqualified to be attorney general. It did not help that he was unpopular with his Republican colleagues in Congress, where he had a reputation as a vain and vindictive showboat fond of divisive political stunts. He might nevertheless have survived the confirmation process were it not for the salacious claims about his recreational habits.

The most serious allegation is that Gaetz twice had sex with a 17-year-old girl during a July 2017 “house party” in Florida. Since the age of consent in Florida is 18 and Gaetz was older than 23 at the time, that would have been a second-degree felony under state law, punishable by up to 15 years in prison. According to the House Ethics Committee, which heard testimony from the alleged victim and “multiple individuals corroborating the allegation,” the girl did not volunteer her age and Gaetz did not ask. The committee “did not receive any evidence indicating that Representative Gaetz was aware that Victim A was a minor when he had sex with her.” But although it may seem counterintuitive, ignorance of that point is no defense to a statutory rape charge under Florida law.

The Justice Department investigated Gaetz for possible sex-related violations of federal law and decided against pursuing charges, reportedly because prosecutors worried that jurors would not consider the witnesses credible. As Gaetz tells it, that means he was “FULLY EXONERATED.” But a decision against prosecution, which hinges on whether the government can prove its case beyond a reasonable doubt, is not the same as exoneration, and the bipartisan ethics committee, which did not have to meet that burden, believed the testimony about Gaetz’s alleged sexual encounters.

If the party described by those witnesses had happened in a jurisdiction with a lower age of consent—say, Texas, Pennsylvania, or the District of Columbia—Gaetz’s alleged conduct would not have been a crime. But given the law in Florida, incuriosity about the age of a sexual partner would have been reckless, to say the least.

Gaetz insists that the incident described by the committee never happened. He also maintains that his payments to adult sexual partners were gifts rather than compensation for their services. “In my single days,” he says, “I often sent funds to women I dated—even some I never dated but who asked. I dated several of these women for years.”

According to the House Ethics Committee, Gaetz paid a dozen women and an intermediary a total of nearly $90,000 from 2017 to 2020, often via Paypal or Venmo. The committee notes that Gaetz paid most of that money, some $64,000, to a “former girlfriend,” and it concedes that “some of the payments may have been of a legitimate nature.” But it notes that the former girlfriend “asserted her Fifth Amendment right when asked whether the payments to her from Representative Gaetz were for sexual activity and/or drugs, or for her to pass on to others for such purposes.” Based on that lack of cooperation and “evidence received from other sources,” the committee “found substantial reason to believe that most of these payments were for such activity.”

Gaetz “regularly paid women for engaging in sexual activity with him,” the report says. Although Gaetz “did not appear to have negotiated specific payment amounts prior to engaging in sexual activity with the women he paid,” it says, “the women had a general expectation that they would typically receive some amount of money after each sexual encounter.”

The nexus that the committee perceives is a matter of interpretation that underlines the arbitrariness of laws against prostitution. There is nothing illegal about giving money to a sexual partner, provided there is no quid pro quo. Gaetz insists there never was.

In support of his characterization, Gaetz cites the testimony of a woman who said, “I never charged anyone anything. It was just given to me….It was all their choice to give me whatever they wanted.” He also cites testimony that “we never discussed money” and that at least one woman did not view herself as engaged in “sex work.” She said there were “a lot of times” when “I did not get paid for being there,” adding, “I thought a lot of these people were my friends.”

Gaetz, in short, concedes that he gave money to a bunch of women who had sex with him but rejects the portrayal of those payments as commercial transactions. That might seem like absurd hair splitting, but this is precisely the sort of silly distinction that the criminalization of sex work demands. Standing alone, the allegations about sex and money seem like much ado about private behavior that would be none of the government’s business under a saner legal regime.

The same could be said about the allegations that Gaetz used illegal drugs. “Representative Gaetz denied using illicit drugs in written correspondence
to the Committee,” the report says. But the committee found “substantial evidence,” including testimony from people who said they had witnessed Gaetz’s drug use, that he lied about that.

“Representative Gaetz used illegal drugs on numerous occasions between 2017 and 2020, in violation of state laws,” the report says. “During the period 2017 to 2019, Representative Gaetz used or possessed illegal drugs, including cocaine and ecstasy, on multiple occasions….The witnesses interviewed by the Committee consistently testified that Representative Gaetz was a frequent user of marijuana.”

This is obviously not a good look for a legislator, let alone an attorney general charged with enforcing federal drug laws. But this conduct, like Gaetz’s alleged payments for sex, violated no one’s rights and therefore is not properly treated as a crime.

Depending on exactly when he used drugs, Gaetz might be charged with hypocrisy. As a Florida legislator in 2012, he supported a bill requiring random drug testing of state employees. As of November 2016, when he first ran for Congress, he opposed marijuana legalization. But he had changed his public position on cannabis by 2019, when he supported a bill that would have repealed the federal ban. The following year, Gaetz was one of five Republicans who voted for that bill when the House approved it. In an interview with Vanity Fair, he complained that “the federal government has lied to our country for a generation about marijuana.” And for what it’s worth, Gaetz was one of 25 representatives, including more than a dozen Republicans, who voted against a 2018 bill aimed at suppressing online speech related to prostitution.

Unlike paying for sex and using illegal drugs, Gaetz’s alleged receipt of improper gifts would not have been a crime. But the committee says it violated House ethics rules.

“There is substantial evidence that Representative Gaetz received impermissible gifts in
connection with his travel to the Bahamas in September 2018,” the report says. “Specifically, Representative Gaetz accepted travel via a private plane and other travel costs. Contrary to Representative Gaetz’s claims that he provided ‘substantial’ evidence to the Committee ‘demonstrating his innocence’ on this allegation, he provided no evidence showing how he paid for any travel costs other than his flight to the Bahamas, despite being given multiple opportunities to do so.”

The committee says Gaetz violated another House rule by “us[ing] the power of his
office to assist a woman with whom he was engaged in a sexual relationship in obtaining an expedited passport.” The woman “was not his constituent, and the case was not handled in the same manner as similar passport assistance cases.”

Finally, the report says Gaetz “engaged in obstructive conduct with respect to the Committee’s investigation.” Gaetz “continuously sought to deflect, deter, or mislead the Committee in order to prevent his actions from being exposed. This was most notable with respect to the Committee’s specific requests regarding the Bahamas trip.”

The committee also notes that Gaetz “declined to provide testimony voluntarily and did not appear when subpoenaed.” It says he “routinely ignored or significantly delayed producing relevant information requested by the Committee.” Although Gaetz’s “obstructive conduct in this investigation did not rise to the level of a criminal violation,” the report says, “it was certainly inconsistent with the requirement that Members act in a manner that reflects creditably upon the House.”

In a dissenting statement, committee Chairman Michael Guest (R–Miss.) and some of his colleagues object to the release of the report, which they say should have been precluded by Gaetz’s resignation. “The decision to publish a report after his resignation breaks from the Committee’s long-standing practice, opens the Committee to undue criticism, and will be viewed by some as an attempt to weaponize the Committee’s process,” Guest writes. But the dissenters “do not challenge the Committee’s findings.”

It is not hard to see why those findings would have given pause to senators charged with considering Gaetz’s nomination. Senators presumably would have viewed the allegations of criminal conduct as a drawback for someone nominated to run the Justice Department. And if the senators credited those allegations, as the House Ethics Committee did, they would have had to view his defenses as flagrantly dishonest. But with the notable exception of the statutory rape claim, Gaetz’s alleged criminality hinges on laws that wrongly treat peaceful, private behavior as a matter of public concern. And given Gaetz’s lack of relevant legal experience, the question of whether to confirm him should have been easy to answer without delving into his sex life or his other recreational choices.

Trump’s decision to nominate Gaetz in spite of the widely publicized ethics charges against him nevertheless remains a puzzle. It resulted in an early, embarrassing defeat that could have been easily avoided by nominating a better-qualified loyalist, which is what Trump ended up doing. Contrary to the theories that credit Trump with a Machiavellian motivation, there was no obvious upside to this doomed nomination, and the most plausible explanation is a combination of arrogance and impulsiveness that, depending on your perspective, is either alarming or reassuring.

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