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Rep. Matt Gaetz’s ex-girlfriend testified before a grand jury.  Why prosecutors love it.

Florida Republican Rep. Matt Gaetz’s ex-girlfriend testified before a federal grand jury on Wednesday after apparently in talks with prosecutors over an immunity deal. As part of a possible agreement, she should be granted immunity from possible prosecution for allegedly obstructing justice in exchange for her testimony. Well done, prosecutors.

Going after an ex-girlfriend is awesome. It’s diabolical, but awesome.

It’s important to point out that in the case of Gaetz’s ex-girlfriend, we don’t know what information she provided as part of the FBI’s investigation of the congressman for alleged crimes, including trafficking. sex of a 17-year-old boy. It is also important to point out that Gaetz has not been charged with any crime and has denied any wrongdoing.

The lesson for criminals is clear. If you’re dating someone and someone knows what you’re doing criminally, you should think about proposing.

We do know, however, that if the target of a federal investigation is involved in a romantic relationship, prosecutors would rather it be with a girlfriend than a wife. And they would still rather deal with an ex-girlfriend than a current girlfriend.

There are at least two reasons why it is less attractive for the government to try to persuade a target’s wife to cooperate. Federal courts recognize two marital privileges: Either spouse can assert the confidential marital communications privilege to prevent the other from testifying about private discussions they had during the marriage. In addition, spousal testimony privilege allows one spouse to refuse to testify against the other during the marriage.

Historically, American society has placed value on certain relationships by protecting participants from having to testify in court. Only a very exclusive set of relationships can claim these privileges in federal court: clergy-penitent, attorney-client, psychotherapist-patient, and spouses.

There is exactly no “girlfriend” testimonial privilege. It doesn’t matter if the girlfriend has lived with the boyfriend for years. It doesn’t matter that they have children together. A girlfriend is not a wife, but she is a potential goldmine for prosecutors. They have a witness who often knows the target as well as a spouse, but who can be questioned, coaxed, and subpoenaed without worrying about those pesky privilege barriers.

The defendants tried forcefully to convince a court to blur the lines and extend the privilege to a girlfriend or the mother of their children. They almost always fail.

I can’t blame them for trying, but the reality is that this privilege is more often curtailed by the courts than it is extended. And this is a good thing. Any privilege that conceals criminality should be used sparingly. It’s not great that marital privileges arguably discriminate against unmarried couples. They also have a rather unsavory history. But they serve a purpose, and there’s a reason they’re limited to marriage.

Marital privileges have their origins in degrading medieval conceptions of gender: since the woman had no recognized separate legal existence, she was one with the husband. If the husband wasn’t going to testify in his own case, neither was his wife.

The Supreme Court did not expressly recognize the marital communications privilege until 1934. Until another High Court opinion in 1980, Trammel v. United States, the country perpetuated an antiquated standard under which one spouse could claim the privilege of prohibiting the other from testifying no one wanted.

As contemporary conceptions of marriage evolve and expand, privilege should expand, whether in same-sex marriages or legal civil unions.

But as the court concluded in Trammel, “When one spouse is willing to testify against the other in criminal proceedings – whatever the motivation – their relationship is almost certainly in bad shape; there is probably little marital harmony to preserve for privilege.

The US legal system’s assessment that a formal marriage above other relationships has social consequences. Without marriage there is no privilege – no matter how close the couple is. Consider that these privileges were completely unavailable to same-sex couples in the United States until 2004, when Massachusetts was the first state to legalize same-sex marriage. Common-law spouses can reject official state approval of their relationship, but they risk losing the privilege with it. Although the courts have considered extending the privilege to common-law spouses, few states even recognize this type of marriage now.

But marital privilege serves an important societal purpose. Regardless of the justifications that have fortunately been dismissed over the years, spousal privilege remains necessary to the harmony and sanctity of marriage, as the courts have said. As contemporary conceptions of marriage evolve and expand, privilege should expand, whether in same-sex marriages or legal civil unions.

But that shouldn’t encompass casual relationships. Boyfriend-girlfriend privilege would be an absolute disaster. Among other problems, it would encourage criminals to date more when, frankly, we want criminals to date less.

And in any case, a girlfriend usually becomes either a wife or an ex-girlfriend. There’s a difference between marriage commitment and someone you just “Netflix and chill” with. It would defeat the purpose behind the privilege if anyone a defendant had ever dated Bumble with could refuse to testify against him in a criminal case.

The only thing prosecutors like better than dealing with girlfriends is dealing with ex-girlfriends. This preference, however, has nothing to do with the rules of evidence. It has to do with human nature. An ex-girlfriend usually loves the ex-boyfriend being investigated. Even better for investigators, sometimes the ex-girlfriend hates the ex-boyfriend with seething passion. It’s much easier for a witness to incriminate someone if they already hate their guts.

The lesson for criminals is clear. If you’re dating someone and someone knows what you’re doing criminally, you should think about proposing.


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