By Andrew Chung
(Reuters) -Even as an uproar over files relating to Jeffrey Epstein engulfs President Donald Trump and Congress, the U.S. Supreme Court is due to wade into the controversy and decide whether to hear a bid by an associate of the late financier and convicted sex offender to overturn her criminal conviction.
The justices, now on their summer recess, are expected in late September to consider whether to take up an appeal by British socialite Ghislaine Maxwell, currently serving a 20-year prison sentence after being found guilty in 2021 by a jury in New York of helping Epstein sexually abuse teenage girls.
Maxwell’s lawyers have told the Supreme Court that her conviction was invalid because a non-prosecution and plea agreement that federal prosecutors had made with Epstein in Florida in 2007 also shielded his associates and should have barred her criminal prosecution in New York. Her lawyers have a Monday deadline for filing their final written brief in their appeal to the court.
Some legal experts see merit in Maxwell’s claim, noting that it touches on an unsettled matter of U.S. law that has divided some of the nation’s regional federal appeals courts, known as circuit courts.
Mitchell Epner, a former federal prosecutor now in private practice, said there is a chance that the Supreme Court takes up the case, and noted the disagreement among appeals courts. Such a split among circuit courts can be a factor when the nation’s top judicial body considers whether or not to hear a case.
“The question of whether a plea agreement from one U.S. Attorney’s Office binds other federal prosecution as a whole is a serious issue that has split the circuits,” Epner said.
While uncommon, “there have been several cases presenting the issue over the years,” Epner added.
Trump’s Justice Department appeared to acknowledge the circuit split in a brief filed to the justices this month, but urged them to reject the appeal.
Any disparity among lower court rulings “is of limited importance,” Solicitor General D. John Sauer wrote in the brief, “because the scope of a plea or similar agreement is under the control of the parties to the agreement.”
If the Supreme Court opts to grant Maxwell’s appeal, it would hear arguments during its new term that begins in October, with a ruling then expected by the end of next June.
MOUNTING PRESSURE
Trump and his administration have been facing mounting pressure from his supporters to release additional information about the Justice Department’s investigation into Epstein, who hanged himself in 2019 in a Manhattan jail cell, an autopsy concluded, while awaiting trial on sex-trafficking charges.
Deputy U.S. Attorney General Todd Blanche, a former personal lawyer to Trump, met with Maxwell in Florida on Thursday in what her lawyer called “a very productive day.”
The administration reversed course this month on its pledge to release more documents about Epstein, prompting fury among some of Trump’s most loyal followers. The Epstein case has long been the subject of conspiracy theories, considering his rich and powerful friends and the circumstances of his death.
The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump during his first term in office.
Whether the court would want to take on such a case that represents a political landmine is an open question. The justices hear relatively few cases – about 70 out of more than 4,000 appeals filed at the court each year – and have broad discretion to choose which ones will be on their docket. At least four of the justices must agree in order for the court to take up a case.
EPSTEIN’S DEAL
Maxwell’s appeal focuses on a deal Epstein struck in 2007 to avoid federal prosecution in part by pleading guilty to state criminal offenses in Florida of soliciting prostitution and soliciting minors to engage in prostitution. Epstein then served 13 months in a minimum-security state facility.
In 2019, during Trump’s first term as president, the U.S. Justice Department charged Epstein in Manhattan with sex trafficking of minors. Epstein pleaded not guilty, but committed suicide before the trial at age 66.
Maxwell was arrested in 2020 and convicted the following year after being accused by federal prosecutors of recruiting and grooming girls to have sexual encounters with Epstein between 1994 and 2004.
Maxwell failed to convince a trial judge and the New York-based 2nd U.S. Circuit Court of Appeals to throw out her conviction based on the 2007 non-prosecution agreement, which stated that “the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.”
In the appeal to the Supreme Court, Maxwell’s lawyer David Markus said that in its reference to co-conspirators, the Epstein agreement had no geographic limit on where the non-prosecution agreement could be enforced.
“If the government can promise one thing and deliver another – and courts let it happen – that erodes the integrity of the justice system,” Markus told Reuters.
“This isn’t just about Ghislaine Maxwell. It’s about whether the government is held to its word,” Markus said.
The National Association of Criminal Defense Lawyers has urged the Supreme Court to hear Maxwell’s appeal given the prevalence of plea agreements in the U.S. criminal justice system and to ensure that the government keeps its promises.
The group represents thousands of private lawyers, public defenders, law professors and judges nationwide. It said in a filing to the justices that the lack of a geographic limitation means “no part of the Department of Justice may institute criminal charges against any co-conspirator in any district.”
Columbia Law School professor Daniel Richman, an expert in criminal law, said it was unusual for the U.S. attorney in Florida to include protection for co-conspirators in the agreement to not prosecute Epstein.
That peculiarity might be reason enough for the Supreme Court to avoid the matter, Richman said, as it renders the case a poor vehicle for resolving whether pleas in one court district bind actions in all other court districts.
“There were many strange things about this deal,” Richman said, which will cut against the Supreme Court’s interest in taking up Maxwell’s appeal.
Richman said he hoped the political fallout would not play into the Supreme Court’s decision on whether to hear Maxwell’s appeal. If it does, Richman said, taking up the case could allow Maxwell to avoid cooperating with the government and dodge responsibility.
“A decision that would allow Maxwell to protect herself probably would not be something they would be interested in,” Richman said of the Supreme Court justices.
(Reporting by Andrew Chung; Editing by Amy Stevens and Will Dunham)
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