Dem
47
GOP
53
Donald Trump's current plan for trying to make the Epstein files go away is to get Ghislaine Maxwell to sign a document or testify that Trump did not commit statutory rape on Jeffrey Epstein's island, while a whole bunch of Democrats did. In return he would promise her a pardon. Of course, this plan might fail for a variety of reasons:
That third one would really shake things up, but it is possible. Everything depends on a sweetheart plea deal Epstein made with the feds in 2007. One line in it reads: "The United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein." Should the DoJ have made this deal? Maybe yes, maybe no, but it did. Maxwell's lawyers are arguing that the DoJ can be held to a written agreement it made. Since the DoJ agreed not to prosecute any of Epstein's potential co-conspirators, the case depends on whether Maxwell is a co-conspirator. It is an unusual thing for a criminal defendant to argue that, yes, she was a co-conspirator in a criminal conspiracy and for the government to argue that no, she wasn't. Still, here we are.
Her head lawyer, David Markus, argued: "This promise is unqualified. It is not geographically limited to the Southern District of Florida, it is not conditioned on the co-conspirators being known by the government at the time, it does not depend on what any particular government attorney may have had in his or her head about who might be a co-conspirator, and it contains no other caveat or exception. This should be the end of the discussion."
Several neutral lawyers have looked at the plea deal recently and were astonished. Normally the DoJ does not give blanket immunity to people not even named in the plea deal and certainly not to people they may not even know were involved in the crime. That it is unusual, though, doesn't make it invalid.
Oh, and the plea deal was made by the then-U.S. attorney for the southern district of Florida, Rene Alexander Acosta. If that name seems vaguely familiar, good for you. He was secretary of labor in Trump v1.0. Did his appointment somehow relate to the plea deal, which made Jeffrey Epstein a happy man and someone likely to keep his mouth closed? Beats us.
Solicitor General Dean John Sauer has argued to the Supreme Court that the government was not aware of Maxwell's role in Epstein's crimes at the time, so she can't possibly have immunity. After all, as the Supreme Court knows, the actual words in plea deals, legal documents, laws, and the Constitution don't actually mean anything. What counts is whether Donald Trump likes the final ruling.
Normally, the Supreme Court doesn't look at plea deals, but the DoJ warns U.S. attorneys not to cut deals that prevent a different U.S. attorney from prosecuting one of the co-conspirators who committed some part of the crime in his or her district. Of course, the DoJ's manual binds U.S. attorneys but not the courts and nothing binds the Supreme Court.
If the Supreme Court rules that the plea deal was much broader than it needed to be, but that is what it took to get Epstein to plead guilty, then it has to overturn Maxwell's conviction. If the Supreme Court decides to SCACO, that will help Trump now, but will make the DoJ's work much harder in the future. Suppose the DoJ has a lot of evidence about some crime and offers the defendant a deal to save it a lot of work going to trial, with the possibility of not getting a guilty verdict. The defendant may be worried about some future court voiding the deal for... whatever reason. The defendant then will probably reject the deal and take his chances in court, this is especially true for well-heeled defendants for whom the legal fees are not an issue. The result is that many more cases will have to go to trial and the DoJ will have to spread its resources much more thinly, such that criminals will get away with it more often. Making plea deals potentially revocable after the fact would probably not be a good development for the application of justice. But Trump doesn't care about that. He cares only about making Epsteingate go away. (V)