Jose Pagliery outlined a nightmare scenario for the news site NOTUS. What if the US Supreme Court agrees that Jeffrey Epstein’s notorious 2008 non-prosecution agreement shields Ghislaine Maxwell and all potential co-conspirators? If so, Maxwell could shield Donald Trump and everyone else in the Epstein files by naming them as co-conspirators.
As bad as that would be, it’s unlikely.
The Supreme Court probably won’t hear Maxwell’s appeal.
Maxwell’s lawyers argue she should not have been prosecuted because Epstein struck a deal with then-US Attorney Alex Acosta that neither Epstein nor any of his potential co-conspirators would be prosecuted if Epstein pled guilty to soliciting underage prostitutes in Florida.
The question of whether this non-prosecution agreement (NPA) covers Maxwell is moot because it only applies to crimes Epstein committed between 2001 and 2007. Maxwell was prosecuted for trafficking girls starting in the mid-1990s.
Maxwell’s appeal has exactly one thing going for it. Her lawyers have found a so-called circuit split, which is one of the best “hooks” to get a case before the Supreme Court. In this case, several judicial circuits disagree about whether an ambiguous plea deal struck by one US attorney can bind other US attorneys without their consent.
When federal judicial circuits arrive at conflicting interpretations, only the Supreme Court can lay down the law. That’s why about 70 percent of Supreme Court cases resolve circuit splits. Even so, the Supreme Court ignores two out of three petitions asking it to resolve them.
A variety of factors influence the court’s willingness to weigh in. The court considers how important the issue is, how many people it affects, and how long the split has been going on. One of the most important factors is whether resolving the split would change the outcome of the underlying case. Resolving the NPA conundrum wouldn’t change Maxwell’s fate, because she was convicted for criminal conduct outside the scope of the NPA. So, even if the Supreme Court were to find that the NPA covered Maxwell’s later conduct, it wouldn’t matter because her crime spree started before the period covered by the NPA.
That’s the sober legal analysis. Now let’s look at the crass political calculus.
A common assumption is that the Supreme Court automatically does anything Trump wants. This is a bad heuristic. For example, the high court declined to steal the 2020 election for Trump even though he really wanted them to. The best predictor of whether the Supreme Court will cater to Trump is whether the result would advance the conservative majority’s agenda.
Freeing Ghislaine Maxwell wouldn’t make the president more like a king, hobble the administrative state, or deliver a policy win for the conservative base. It’s therefore unlikely that the Supreme Court would volunteer to absorb the political firestorm that would ensue if they freed Maxwell.
Freeing Maxwell might be convenient for Donald Trump personally, because he wouldn’t have to spend the political capital to pardon her, but it would hurt the GOP’s political prospects overall.
So, why would the Supreme Court go out of its way to free the nation’s most notorious pedophile for a lame duck president? They already gave Trump kinglike power to issue corrupt pardons. The most likely scenario is that the Supreme Court ignores Maxwell’s appeal and makes Trump clean up his own mess by pardoning Maxwell.
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