Will the Supreme Court Free Ghislaine Maxwell?

Ghislaine Maxwell’s Supreme Court Bid, and Its Bill Cosby Echo.

Welcome back to The Red Letter.

This is a special Sunday night edition because tomorrow the Supreme Court meets in private to decide whether to take up Ghislaine Maxwell’s appeal. You might be surprised to hear that Maxwell has a better shot than most at walking free, despite being convicted in 2021 of five counts including sex trafficking of a minor. CNN Legal analyst Elie Honig, a former prosecutor in the Southern District of New York and author of the new book When You Come at the King: Inside DOJ’s Pursuit of the President, from Nixon to Trump, breaks down how Maxwell could pull a Bill Cosby and end up a free bird, all thanks to former U.S. Attorney Alex Acosta’s sweetheart deal for Jeffrey Epstein.

But first, every day there’s another drip, drip, drip in the Epstein saga. The House Oversight Committee just released new documents from Epstein’s estate showing that some of the most powerful people in the world, including those in Donald Trump’s orbit, still thought it was fine to associate with a registered sex offender after he’d already served jail time. According to Epstein’s schedule, “best buddy” Elon Musk was lined up to visit his private island, Little Saint James, in 2014, where so much of the depravity took place. The entry is marked “TBD,” so we don’t know if he went through with it, but why was he even considering it?

In 2017, major Trump backer and J.D. Vance’s political patron, Peter Thiel, the GOP megadonor and PayPal founder, had lunch with Epstein, according to the calendar. Just months before Epstein’s 2019 arrest, Trump’s former White House strategist Steve Bannon was slated to meet Epstein for breakfast. Bannon reportedly recorded hours of footage with him. And then, of course, there’s Bill Gates, with Epstein scheduled to attend a party alongside him in 2014.

Why was it so hard for these men to be revolted by what he did to other people’s children?

And now my interview with Honig on the SCOTUS meeting tomorrow. It has been edited by

Abi Baker

for clarity and brevity. You can also listen to it on Apple Podcasts and Spotify.

Tara Palmeri: What are the chances that they’ll even take up, that they’ll look at her case again?

Elie Honig: I would say it’s unlikely they’ll take it, but substantially more likely than the average case. I’m not sure people understand this. You don’t have an automatic right to go to the Supreme Court. Nobody does. Even Trump says I’m going to the Supreme Court. The president doesn’t. It’s up to the US Supreme Court which cases they take. If you look at the data, the Supreme Court in recent years has taken 2-3% of all cases presented. So yes, it’s tiny. I give her a heightened chance - but I wouldn’t say 50% or anything like that.

How did she even get to this place where SCOTUS is considering her case in a private meeting?

This is a purely legal issue that would apply the exact same if she were charged with robbery or drugs, and if she were unknown, you know, it happens that she’s Ghislaine Maxwell. It happens that she’s part of the Epstein case and therefore the center of a huge amount of attention. But here’s the legal issue.

So it goes back to the original plea deal that Jeffrey Epstein signed back in. Was it 2007-2008? So the infamous sweetheart deal from Alex Acosta, the deal basically says he’s going to go plead guilty in state court, which he ended up doing, and he got like 13 months, and he’s out of prison on work release. But federally, the deal he gets is technically a non-prosecution agreement. It says we will not prosecute you federally. One of the terms of that deal says your coconspirators will not be prosecuted federally. And then, oddly, it lists four names, not Ghislaine Maxwell, but it also says any other coconspirators so named and unnamed is the actual wording.

I just don’t understand how sex trafficking, which is supposed to be across state lines, would allow a non-prosecution agreement because the other state should be able to prosecute you too.

We’re back to the original sin here of Alex Acosta giving her that deal. I think the whole world agrees that it’s a ridiculous deal, but he signed it on behalf of the US government, so it’s binding. It’s certainly binding on his office. The question is, will it be binding in the Southern District of New York?

I suspect if her name was not Ghislaine Maxwell, she’d have a better chance of getting the Supreme Court to take it.

Does the fact that she wasn’t named in the 2007 agreement weaken her claim?

I guess it would be slightly stronger if her name was listed, but the government is not saying, ‘you’re not one of those coconspirators’; they’re saying, ‘of course she’s one’; they charged her as one of the coconspirators. They’re just saying this deal doesn’t apply outside the Southern District of Florida. You are not entitled to use it against us in New York.

What do you think about this non-prosecution agreement? Have you ever heard of a deal like this before?

It’s one of the worst deals I’ve ever seen. It’s indefensible. What they did for Epstein is ridiculous enough. They basically gave him 11 months of partial confinement. The icing on top is the clearing of all the coconspirators. I have never heard of that.

I don’t see a conspiracy theory. I just think Acosta’s a huge wuss. He didn’t have the fortitude to go up against Ken Starr, Alan Dershowitz, Gerald Lefcourt, and all of Jeffrey Epstein’s connections and money.

I think it goes higher than that. Acosta goes off campus, off-site to meet with Ken Starr and Jay Lefkowitz. He has breakfast 90 miles from Palm Beach, that’s crazy.

Oh, you think they trapped him or something?

No, I just think that there was something more to it. Why else would he feel like he needed to leave his office to meet with the defense team? That’s insane.

It’s not crazy to go grab breakfast with someone, you know, you’re involved with.

Ninety miles away at a breakfast spot where they wouldn’t be recognized. These are also not the types of guys who eat at roadside Marriott hotels. These people roll in big, big circles.

It’s also consistent with the idea that he was just in awe of and terrified of these guys. The other thing that Acosta did that’s inexcusable is that he basically agreed with the defense lawyers to mislead the victims.

There’s email traffic between them, which has now come out where they’re like, ‘You’ve agreed to not notify other individuals.’ Acosta had a legal obligation and at one point, the FBI sent out a notice to the victims after the deal was in place, saying the matter is still open and pending.

There are three layers of outrage here. There’s giving Epstein a ridiculously soft deal, giving the coconspirators, including Maxwell, potentially a free pass, and then screwing over the victims. To this day, that deal is Maxwell’s hook to get this thing up to the Supreme Court.

Acosta made a stunning admission last week before the House Oversight Committee when he said that he didn’t read the victim statements that were part of the prosecution memo. He had decided that he did not think these women could sufficiently represent themselves as crime victims in this case. To me, this reeks of misogyny.

Definitely 15, 20 years ago, there was this sort of, you know, back-of-the-hand treatment for victims. I think that’s true.

You draw a parallel to the Bill Cosby case when you talk about this Ghislaine Maxwell plea. Can you explain why, and what this might mean if she ends up walking just like Bill Cosby?

They’re not identical, but the common thread is that the prosecutors make a crappy deal, and then they get stuck with it. So here again, Acosta makes this crappy deal, and the DOJ, here we are 15 years later, may get stuck with it. In the Cosby case, the District Attorney’s office was investigating these allegations against Cosby, which started to emerge.

At the same time, some of Cosby’s victims are suing him civilly. The district attorney ultimately says that Cosby cannot be forced to testify. He cannot be subpoenaed in the civil suits as long as he has a pending criminal case, because as long as there’s a pending criminal investigation, he’ll have the Fifth Amendment right.

After the DA certifies that the case is over, Cosby goes to testify in the deposition and makes outrageous admissions. He says, basically, ‘Yes, I would drug.’ He admits the whole thing.

The DA’s office says, ‘Whoops, now we’re changing our mind, now we are going to charge you, and we’re going to use your testimony against you.’ And ultimately, the Pennsylvania Supreme Court says, ‘Look, he’s definitely guilty, but sorry DA’s office, you tricked him. You told him no criminal investigation, he waves his First Amendment rights, testifies, then you change your mind, you grab that testimony and use it.’ As much as it pains everyone to see Bill Cosby go free, it’s the right decision because you can’t make a deal and go back on it. It’s like a contract. It’s a deal, especially when you’re a prosecutor.

Do you think Maxwell will use that argument, too?

I’m not sure she’ll cite the Cosby case, but I think the general principle is that they made a deal like it or not, fair or not. Alex Acosta, when he had the pen to sign for the US government, signed that deal. And it doesn’t go away just because Ghislaine Maxwell is bad or because Alex Acosta is an idiot. It’s still a deal.

If the Supreme Court throws out Ghislaine Maxwell’s conviction, what happens next, is there a retrial?

No, no, in this case, if they throw it out, then their ruling would be that the agreement is binding on the DOJ, and hence they can’t charge her again. It means she has the right to not be tried at all.

The court has changed so much. Will politics have any impact on this decision?

I just don’t think they want to wade into the messiest, most controversial, ugliest case. And if they rule in her favor, even if they believe she’s right legally, the three liberal justices are not going to want this. I think [John] Roberts is going to be allergic to any involvement in this case. I could see easily [Amy Coney] Barrett and [Brett] Kavanaugh going along with that and just being like, no thanks.

Or it could be someone wants to take the case and wants to rule against her. So there are two hurdles here.

We talked about the big names on Epstein’s legal team, like Alan Dershowitz, Ken Starr, Jay Lefkowitz. They lobbied furiously within the government for that deal. How common is it for high-powered influence to enter into plea negotiations? Have people said to you ‘we’ll pull political strings if you don’t do this?’

Every good lawyer wants to go as high up the chain as he can. Sometimes you only get so far, but it absolutely is the case if it’s someone who’s known and respected and powerful, especially honestly, if it’s a former colleague, if it’s someone like Lefkowitz.

There’s some of this in Trump’s past. His kids avoided a fraud indictment by the Manhattan D.A. a year before, in the early 2000s, before Trump was a political figure, largely because Trump had well-connected lawyers who had donated to Cyrus Vance Jr. They got a high-level meeting with Cyrus Vance Jr., and he reversed what his line prosecutors wanted to charge. Access matters and a defense attorney, quality and reputation matter.

When I was investigating the non-prosecution agreement for Broken: Jeffrey Epstein, I knocked on the doors of the colleagues of State Attorney Barry Krischer to find out why he and his deputy were so lenient against Epstein. They literally said “There are no victims here.” I found that these prosecutors were just fanboys – Alex Acosta for Ken Starr and Barry Krischer for Alan Dershowitz. I don’t think it was just that, but it felt like there was an element of, ‘Oh this is a famous attorney, people read their books, they teach at Harvard.”

I also think that they never thought the victim stories would be told in the way that they eventually were. I think they thought the girls could be safely shuffled aside.

They didn’t see girls from prominent families, they just saw a bunch of girls from the wrong side of the tracks.