Any attempt from the Justice Department to pressure Ghislaine Maxwell to tell them what she knows about Jeffrey Epstein’s crimes will have to contend with a tricky fact: The Supreme Court could soon overturn her entire conviction and set her free without her needing to cut any new deals with prosecutors.
DOJ officials are meeting with Maxwell Thursday, after Attorney General Pam Bondi directed the department to seek out more information from her about Epstein and his potential accomplices. “If Ghislane [sic] Maxwell has information about anyone who has committed crimes against victims, the FBI and the DOJ will hear what she has to say,” Deputy Attorney General Todd Blanche said in a statement earlier this week.
That decision came after days of outcry over the Trump administration’s decision not to release the so-called “Epstein files,” and a steady drumbeat of reports about President Donald Trump’s former relationship with Epstein.
Maxwell’s place in the long-running Epstein saga is unique, and could quickly become legally perilous for the DOJ.
Palm Beach County police — dissatisfied with a tepid 2006 state indictment of Epstein — tossed the case over to the U.S. attorney for the Southern District of Florida, who negotiated a lenient non-prosecution agreement that covered Epstein and co-conspirators too. After a Miami Herald exposé drew attention to how the deal hamstrung Epstein’s many underage victims, federal prosecutors in Manhattan indicted him again, only to have him die in jail. After being caught lying low in New Hampshire, Maxwell was convicted in New York.
Maxwell argued that federal prosecutors in New York were technically barred from pursuing criminal charges against her, but it didn’t convince the trial judge or the Second Circuit Court of Appeals. But that could be because this region of the country has taken the unusual position that local federal prosecutors aren’t bound by immunity deals made in other districts.
Now Maxwell has a pending petition before the Supreme Court that points to the fact that former Southern Florida U.S. Attorney Alex Acosta specifically restricted the entire United States from ever going after Epstein’s allies again.
“The United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova,” the agreement says.
The Sept. 24, 2007, deal was signed by Epstein, his lawyers, Acosta and the lead prosecutor on the case, Ann Marie C. Villafaña.
Maxwell’s claim before the Supreme Court has drawn the support of the National Association of Criminal Defense Lawyers, which represents the nearly 9,000 attorneys who cut plea agreements with the government every day. The organization stresses that striking a deal with the United States as a whole should mean exactly that.
“Defendants in criminal cases rely on the promises made by the Department of Justice when deciding whether to plead guilty and face the life-altering consequences of doing so,” the association argued in an amicus brief in May.
Normally, federal prosecutors in a particular district offer narrow immunity deals that only apply within that jurisdiction. For example, when Michelle Denise McIntyre was indicted last year for defrauding the Small Business Administration out of thousands of dollars in COVID-19 pandemic relief, she eventually signed a plea agreement that makes clear she “understands that this agreement binds only the Office of the United States Attorney for the Middle District of Alabama and that the agreement does not bind any other component of the United States Department of Justice, nor does it bind any state or local prosecuting authority.”
Nearly identical language appears at the very top of a 2023 plea deal in the Eastern District of California accepted by Amani Investments, which operated Coinucopia kiosks and bitcoin exchanges but didn’t file mandatory currency transaction reports.
The rule is so stringent that there are times when plea deals only apply to particular divisions within the DOJ. When Sterling Bancorp was caught padding its bottom line to attract investors when going public, CEO Thomas O’Brien signed a deal that applied exclusively to the DOJ’s Fraud Section — leaving other federal prosecutors free to revisit the matter.
The DOJ’s Justice Manual, the internal guide that applies to every corner of the department, makes a stark warning that “the attorney for the government should exercise extreme caution to ensure that his/her non-prosecution agreement does not confer ‘blanket’ immunity on the witness.”
“It is important that non-prosecution agreements be drawn in terms that will not bind other federal prosecutors or agencies without their consent,” it says, directing department lawyers to first check with other offices or even the assistant attorney general.
The golden rule is to keep “bearing in mind the possible effect of his/her agreement on prosecutions in other districts” — and narrowly tailor a deal to a specific offense and person.
By contrast, the Epstein deal actually operates on two different levels. For Epstein, government lawyers promised that “prosecution in this district for these offenses” would be deferred, which opened the door for New York federal prosecutors to pick up the slack more than a decade later. But Epstein’s inner circle got nationwide immunity.
In his Supreme Court petition, Maxwell’s defense lawyer David Oscar Marcus wrote that “a previous version of the co-conspirator language limited it to the Southern District of Florida before it was amended to refer more broadly to the ‘United States,’” an admission that only draws more scrutiny to the notorious deal.
The fact that this kind of universal immunity is rarely extended only makes it stand out more.
A 2020 review by the DOJ’s Office of Professional Responsibility already found that Acosta exercised “poor judgment” and that the agreement was “a flawed mechanism” for reaching a just outcome. Acosta was pressured to resign from his post as Trump’s labor secretary in 2019 because of the Epstein deal, soon after Epstein was charged in New York.
But the deal is still binding, a point stressed by the defense bar.
“This case involves an unusually broad non-prosecution agreement. But nothing in the law permits the United States to break its promises simply because the promise is an atypical one,” their brief says. “The intentionally broad scope of this NPA may be surprising in retrospect but that does not change the words on the page.”
As public calls for the release of the Epstein files grow louder, the Trump administration has twice asked to push back its response deadline in the Supreme Court. It finally weighed in last week, with former Trump personal-lawyer-turned-solicitor-general D. John Sauer saying that “such a coconspirator clause was ‘highly unusual’” but also arguing the case isn’t even worth all the attention.”
“At all events, the case-specific interpretation of a particular NPA is not a matter that warrants this court’s review,” he wrote.
It’s unclear whether the Supreme Court will take up Maxwell’s case. But different appellate courts disagree on the national scope of plea deals, which makes it ripe for the high court’s input. And it also comes on the heels of the conservative majority’s recent decision to severely weaken the power of individual federal judges to issue universal injunctions. The question now is whether a lone federal prosecutor can essentially bind the entire government, too.