The Supreme Court has been busy during its summer break, issuing decisions on emergency petitions that have enabled President Donald Trump to gut the Department of Education, deport people to South Sudan, and fire swaths of federal employees and agency heads. The Justices have so far kept clear of the revival of the Jeffrey Epstein scandal, which has managed to wobble the MAGA movement’s support for Trump—but, when they return to considering ordinary petitions this fall, one awaits that invites them into the matter. The petition is from Ghislaine Maxwell, who was convicted, in 2021, of federal crimes related to enabling Epstein’s sexual abuse of underage girls, and who was then sentenced to twenty years in prison. She maintains that the federal government’s non-prosecution agreement with Epstein gave her immunity, and so her convictions must be thrown out. And, amazingly enough, she has a point.
Recall that, back in 2007, when Epstein was being federally investigated for sex trafficking of minors, he agreed to plead guilty to state-law crimes and serve an eighteen-month prison sentence in Florida. In exchange, Alex Acosta, then the U.S. Attorney for the Southern District of Florida, promised that his office would not prosecute Epstein for the federal crimes under investigation. The wider Epstein scandal that blew up in 2018 was triggered by new reporting about that sweetheart deal, including the government’s failure to inform his victims about the non-prosecution agreement at the time, and the extent of Epstein’s predations. Julie K. Brown, of the Miami Herald, identified about eighty possible victims. Epstein had ended up serving only thirteen months, including time in the Palm Beach County jail, work release, and house arrest. In the wake of significant public outcry about the case, which became an element of the #MeToo movement, the U.S. Attorney for the Southern District of New York indicted Epstein for sex trafficking in 2019. Epstein died while in federal custody—the Justice Department concluded that he killed himself—before he could pursue a challenge to the indictment or proceed to trial.
After his death, federal prosecutors indicted Maxwell, and it fell to her to brandish the 2007 agreement between Epstein and the government—which included the promise that “the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.” Maxwell is undeniably a co-conspirator of Epstein with respect to the matters addressed in the agreement. Yet federal prosecutors in New York did indict her—apparently not feeling bound by the promise of federal prosecutors in Florida.
Given the slow pace of indictment, trial, and appeal, it is only now that the Supreme Court might consider the question that the case has raised from the start: Does one U.S. Attorney’s agreement on behalf of the United States bind federal prosecutors in other districts? After all, they are all part of the Department of Justice, and all of them represent the U.S. government in enforcing federal law. If so, Maxwell, as a beneficiary of the agreement’s provision of immunity, is entitled to have her conviction for sex trafficking of a minor, for which she received the longest sentence, vacated. (She was also convicted of several other crimes that occurred before the 2001-07 time frame covered by the non-prosecution agreement.) The issue extends well beyond Maxwell. At least two appellate courts—including the Second Circuit, which rejected Maxwell’s appeal of her convictions—hold that an agreement binds only the specific U.S. Attorney’s Office that is a party to it. At least four appellate courts have taken a contrary position: that a U.S. Attorney’s promise on behalf of the United States binds all federal prosecutors, meaning that none of them could bring charges covered by a non-prosecution agreement. The upshot of the split is that, in addition to federal prosecutors in Florida who are bound by the Epstein agreement, those in, say, New Jersey, Virginia, California, and Iowa—and even the U.S. Virgin Islands, where Epstein’s notorious island was located—could not have brought charges resolved in that agreement, while federal prosecutors in New York could and did.
Maxwell is asking the Supreme Court to resolve this conflict in favor of the majority of courts that have addressed the issue. As a convicted sex offender serving time for trafficking underage girls, she is an unappealing messenger for that request, to say the least. One can imagine the outcry of victims’ advocates if the Court agrees to hear Maxwell’s case. But the sole amicus brief that the Court has received is in support of Maxwell. It was filed by the National Association of Criminal Defense Lawyers, which argues that allowing the United States to escape a non-prosecution agreement “would work a detriment on the entire plea system” because “defendants must be able to rely on the written promises made by the government and trust that courts will honor and enforce those promises down the road.” Plea bargains resolve the vast majority of criminal cases. If a non-prosecution agreement on behalf of the United States does not actually resolve a defendant’s criminal liability, then such agreements may become much less attractive—a result that neither defense attorneys nor prosecutors should want.
But there’s a more deeply vexing question raised by this case: What exactly is “the United States”? In our federal system, each of the states is a distinct government with its own laws. At the same time, all exist within the United States—a sovereign government whose laws are, in fact, supreme. When Congress, in the Judiciary Act of 1789, created federal judicial districts, it also provided for the appointment of a U.S. Attorney in each of them, with the responsibility to “prosecute in such district” crimes “under the authority of the United States.” (In those days, few crimes would have spanned several districts.) Some judges have read “in such district” to mean that, even though federal prosecutors enforce the laws of the United States, a U.S. Attorney’s actions do not bind colleagues in other districts. That seems sensible when you imagine the possible chaos of federal prosecutors in each of the country’s ninety-four districts purporting to bind prosecutors in the other ones. But, given that the United States is supposed to be one sovereign with one body of federal law, it is possibly even more bizarre to imagine that a U.S. Attorney who claims to speak on behalf of the United States is in reality making a promise only on behalf of a single district. As the Third Circuit put it in 2002, while holding that agreements with federal prosecutors in Ohio bar prosecution by a U.S. Attorney in Pennsylvania for the same crimes, “United States Attorneys should not be viewed as sovereigns of autonomous fiefdoms.”
In past months, conflicts among offices in the Department of Justice have spilled into public view—for instance, when the acting U.S. Attorney for the Southern District of New York, Danielle Sassoon, resigned rather than obey the order of Emil Bove, then the Deputy Attorney General (and now a Third Circuit judge) to dismiss corruption charges against Eric Adams. Sassoon saw no “good-faith basis” for the dismissal, because it was in exchange for the Mayor’s agreement to carry out the Administration’s immigration priorities. Several other federal prosecutors in New York and Washington, D.C., also resigned over the matter. Other prosecutors stepped in to do what they would not and asked a district court to dismiss the case. The court did so, “with prejudice,” meaning the prosecution cannot be revived. But the government had actually asked for a dismissal “without prejudice,” so that the charges could be resurrected whenever the government wanted, giving Adams more reason to be helpful to the Administration. Had the government got what it wanted, one unintended result would have been that—consistent with the Second Circuit’s position in Maxwell’s case—the U.S. Attorney for the Eastern District, which covers Brooklyn, could have indicted Adams, despite the understanding of federal prosecutors in the Southern District, which covers Manhattan, that he wouldn’t be indicted so long as he coöperated with the Administration.
Maxwell’s claim to immunity from prosecution bears some resemblance to Bill Cosby’s case, in which the Pennsylvania Supreme Court, in 2021, reversed Cosby’s sexual-assault conviction, finding that a prior prosecutor’s promise not to charge him (in exchange for Cosby’s testimony in a civil case) was binding. Both situations involved sex crimes that the public later came to believe had been treated too leniently; prosecutors then acted contrary to previous agreements in response to changing expectations. Prosecutors responding to public outrage is not new, but, if there’s a lesson here, it is that galvanizing outrage against specific offenders may lead to convictions that do not last, because they may dispense with the fairness that even people who’ve committed the most reprehensible crimes are owed.
