Planned Parenthood Win & Ghislaine Maxwell Appeal

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1:50This is Bloomberg Law with June Grosso from Bloomberg Radio. Delane Maxwell is serving a 20-year sentence for her role in a scheme to sexually exploit and abuse minor girls with Jeffrey Epstein. This week, Maxwell asked the Supreme Court to take up her appeal of her federal sex trafficking conviction. Her appeal is based on a non-prosecution agreement that Epstein struck with federal prosecutors in Miami in 2007, and Maxwell argues it should have barred her prosecution in New York 14 years later. Joining me is former federal prosecutor Robert Mintz, a partner at McCarter in English. Bob, start by telling us about this broad non-prosecution agreement that Epstein reached with federal prosecutors in 2007.

2:44The document that's at the heart of the Ghislaine Maxwell appeals to the Supreme Court is a non-prosecution agreement that was signed in 2007 with the U.S. attorney in southern Florida involving Jeffrey Epstein. And in that case, he was facing both federal and potential state charges. The deal that he ultimately struck allowed him to plead guilty to two Florida state charges. And in exchange for that, the Department of Justice agreed not to bring any federal charges against him. But the critical language in the agreement said that the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.

3:33And that is the language that Maxwell's lawyers have latched onto to argue that her subsequent sex trafficking charges in New York were actually barred by that non-prosecution agreement. How unusual is it to have a non-prosecution agreement made by one U.S. attorney bind other U.S. attorneys in different districts? That would be highly unusual. As a federal prosecutor, I had been involved in hundreds of plea agreements, and the standard language in all these plea agreements says that that agreement is limited to the district that is prosecuting you or potentially prosecuting you in that case, and that it expressly does not bind any other district in the country.

4:20So to have language as broad as that, which says that the U.S. attorney in the southern district of Florida can bind every other judicial district in the United States is something that would be highly unusual. But nonetheless, the language that was in that agreement is on its face very broad, And that is at the heart of the Maxwell appeal before the Supreme Court. What about the fact that in Jeffrey Epstein's non-prosecution agreement, U.S. attorney is also promising not to prosecute anyone else? Does that happen? Typically, what a plea aritmement will say is that in exchange for a plea to a particular crime, the U.S.

5:04Attorney's Office will not prosecute that individual for any other crimes related to that criminal activity. It doesn't typically say anything about not bringing charges against any other individual. So in this case, that language is incredibly broad because it talks about not bringing any other federal charges against any unspecified co-conspirators. It doesn't even list who those individuals may be. So it makes that language incredibly broad. And that's why when that case was first appealed to the Second Circuit Court of Appeals, the Second Circuit did not agree that that plea agreement barred the prosecution in New York that was ultimately brought against Ghislaine Maxwell.

5:49That Epstein non-prosecution agreement has been widely criticized. In fact, the Justice Department said in 2020 that then U.S. attorney for the South District of Florida, Alex Acosta, used poor judgment in handling the case. And the Second Circuit reviewed the NPA before upholding her conviction. The central question raised by Maxwell's appeal to the Supreme Court is whether a promise on behalf of the United States that is made by one U.S. attorney in one district can bind federal prosecutors in other districts. But it really is more complex than even that because here it involves not a situation where the individual who pled guilty in Florida is being prosecuted by another U.S.

6:36attorney's office in another part of the country. We're talking about another person who was not even a party to that plea agreement in Florida, arguing that the plea agreement with Jeffrey Epstein somehow bars a prosecution of Ghislaine Maxwell in New York many years later. So it would be an incredibly broad reading of that language. And in fact, the Second Circuit Court of Appeals looked at the plea agreement and said that on its face, while it's possible that the United States could conceivably refer to the entire federal government, when they look at the context and the entirety of that non-prosecution agreement, it makes clear that when they refer to the government or to the United States, they're only referring to the U.S.

7:23Attorney's Office in the Southern District of Florida. And therefore, that language, as Ghislaine Maxwell's attorneys are arguing, is really being taken out of context because it really involves only the Southern District of Florida. But once again, there's really two questions that are being raised here. One is whether it could apply to other U.S. Attorney's Offices as against the individual who's pleading guilty in Florida. But also here you're talking about another individual, not even a party to the Florida agreement, who's trying to use it as a bar to prostitution in another district. The Justice Department filed papers asking the Supreme Court not to take Maxwell's case.

8:01Yeah, the Justice Department is opposing Maxwell's petition and essentially arguing that it's clear in the context of that non-prosecution agreement that it was only referring to the Southern District of Florida and was not attempting to bind other judicial districts around the country. Glenn Maxwell's attorneys are saying that there's a split in the circuits, and that is something that the Supreme Court often considers when taking a case. But they receive thousands of petitions every year, and they grant review in fewer than 100. So the odds of the Supreme Court granting review here are pretty slim.

8:42him. So that's exactly right. It's very rare for the Supreme Court to take these appeals. They do receive thousands of petitions. It takes four justices to grant review. And it seems, in my opinion, unlikely they're going to take this because while there may be a split in the circuits around the country, this is not an issue that comes up on a regular basis. And I think in this case, the Supreme Court is likely just to leave the Second Circuit decision in place and not take it up. This case is unusual in a lot of different ways. One being that her attorney not only appealed to the Supreme Court, but also appealed to President Trump, saying, quote, President Trump built his legacy in part on the power of a deal.

9:31And surely he would agree that when the United States gives its word, it must stand by it. Yeah. So what we're seeing here really is a court filing in the form of this petition to the United States Supreme Court that on its face is fairly typical. They're raising a legal issue. They're arguing that there is a split in the federal circuit, which is something that the Supreme Court considers when it decides whether or not to take a case. And they're trying to argue that the question of whether one U.S. Attorney's Office can, in fact, bind the entire United States is something that's important enough that the Supreme Court ought to take it up.

10:07On the other hand, you cannot ignore the fact that there is a political backdrop to this appeal in that there's been tremendous backlash against the Department of Justice and some of President Trump's supporters regarding the decision not to release additional information related to the Jeffrey Epstein prosecution. And all of that is getting swept up in this Supreme Court appeal, which is why we're seeing her lawyer appeal not only to the Supreme Court, but expressly appealing to President Trump in the reply brief that was just recently filed with the Supreme Court. Her lawyer specifically referenced not only the United States Supreme Court where the brief was filed, but also mentioned President Trump and said, we are appealing not only to the Supreme Court, but to the president himself to recognize how profoundly unjust it is to scapegoat Delaine Maxwell for Epstein's crime, especially when the government promised he would not be prosecuted.

11:06So this is a quite direct appeal, not only to the court, but also to President Trump in the hope that maybe he will pardon her or reduce her sentence, because they know that it's unlikely the Supreme Court is going to take this appeal. The court filing, of course, doesn't refer to the, let's say, unusual out-of-court developments like her meeting last week with the Deputy Attorney General Todd Blanch for two days. She was also subpoenaed to testify by the House Oversight Committee, and her attorney put conditions on her testimony. In addition to immunity, he wanted to be provided with the questions the lawmakers intended to ask her, and he asked that the deposition be rescheduled until after her appeal is resolved before the Supreme Court.

11:57The court won't even be in session until October. Are his requests within the scope of what a defense attorney would normally request if his client who was waiting on an appeal was asked to testify before Congress? Yeah, these are not really unusual requests given her circumstance, but they're also requests that the House Oversight Committee has already determined they would not grant. What the defense lawyer here is really trying to do is to protect his client who is actively seeking post-conviction relief, both in the pending petition before the United States Supreme Court and in a habeas petition they intend to file.

12:36And he is arguing that her testimony before the committee could compromise her constitutional rights, could prejudice her legal claims, and could potentially take a future jury pool if the Supreme Court were to take the case and overturn the lower court's decision and remand the case for another trial. So those requests are really not unusual, but it was also highly unlikely that they were going to be granted by the committee. The most significant condition that Maxwell's attorneys put on her agreement to testify before Congress was this grant of formal immunity. Now, witness immunity comes in several forms.

13:15There's something called transactional immunity, which is a blanket or total immunity, which completely protects the witness from future prosecution for crimes related to their testimony. Then there's something called use or derivative use immunity, which means that you can't use the witness's testimony or any evidence derived from that testimony against that witness, but does allow prosecutors to prosecute for evidence that is independently derived separate from the witness's testimony. But what's happening here was that her lawyers were asking Congress to grant this broad immunity in exchange for her testimony.

13:51And that's something that Congress was likely unwilling to do. And in fact, the committee has already rejected that request. Bob, another thing that's been going on is that the Justice Department has asked judges in Florida and Manhattan to unseal grand jury transcripts in both the Jeffrey Epstein and Ghislaine Maxwell cases. And we've talked before about how you're not going to learn much in those grand jury transcripts. And now we found out that the grand jury transcripts that the Justice Department is seeking only include testimony from two witnesses, both of them law enforcement officers. Law enforcement officers often testify, but what kind of information are you going to get from them?

14:38So there are essentially two ways that prosecutors use grand juries. One is as an investigative tool. The other is as a means for obtaining an indictment. Most of the time, prosecutors use the grand jury for that second purpose, simply to obtain an indictment, because under the Constitution, prosecutors do not have the ability to bring charges directly against individuals. Only a federal grand jury can do that in federal criminal cases. So what prosecutors have to do when they're ready to present their case and ready to bring charges against an individual is bring a witness into the grand jury, generally a law enforcement officer, an FBI agent, a DEA agent, or some other representative of a federal agency.

15:22And that witness can effectively summarize the entire case and the evidence. And by doing that, they can summarize witness testimony. They can talk about documents they reviewed. But that is really a high-level summary of the evidence. And it is just enough for prosecutors to obtain that indictment. It is by no means a complete recitation of all of the evidence the prosecutors have, and it is certainly not a complete recitation of all of the witness interviews that were done in connection with the investigation. So it really is a very targeted presentation in front of the grand jury. Sometimes witnesses are used in order to actually conduct an investigation, but it's unusual and it's usually done in order to lock in witness testimony.

16:07If a prosecutor believes that there is an uncooperative witness, that they don't want to be surprised what they're going to say at a trial. If they might testify at a trial, they bring them into the grand jury. They let them testify, even if prosecutors believe that that testimony may be false, but it locks them in. So whatever their story is in front of the grand jury, they can't change it down the road at a trial. So a Florida judge has already rejected a request for the grand jury transcripts of Epstein's proceedings down there. How likely is it that the New York judges will do the same? Well, for a judge to unseal grand jury testimony is really unusual.

16:48Now, it is left largely to the discretion of the judge, but a judge would have to find extraordinary circumstances. And the fact that there is a strong public desire to get more information about this case really is probably not enough for a judge to agree to release that grand jury testimony. And there's good reason for that, because lots of information and lots of testimony and lots of evidence that's presented in front of a grand jury may mention other individuals who ultimately are not charged. It may mention victims and other sensitive information. And the whole reason that testimony in front of a grand jury is protected by a federal rule known as 6E is because there is a decision that's made, information that does not ultimately lead to an indictment.

17:37So an individual has an opportunity to respond to those charges is not information that ought to be revealed to the public. Because if it is revealed, those people whose names may be mentioned, who have come up in the course of an investigation, really have no opportunity to clear their name since there'll never be a trial, there'll never be a court proceeding. And it really is simply a guilt by association in some cases, which is what the grand jury is designed expressly to prevent. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work, I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies.

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21:19Visit BajaMar.com today and discover a vacation destination where memories are made for a lifetime. Baja Mar, life spectacular. A lot of issues around these Epstein files. Thanks so much, Bob. That's former federal prosecutor Robert Mintz of McCarter & English. In a setback to abortion opponents, a federal judge this week ruled that Planned Parenthood clinics nationwide must continue to be reimbursed for Medicaid funding. A provision in President Trump's signature tax legislation was written to prohibit Planned Parenthood from receiving any Medicaid funds even when abortions are not being provided.

22:02Massachusetts Judge Indira Tawwani found that the provision likely violates the Constitution in three different ways. My guest is reproductive rights expert Mary Ziegler, a professor at UC Davis Law School. Mary, how would the Medicaid cuts in Trump's tax bill affect Planned Parenthood? So I think there are knowns and unknowns. We are pretty sure that it would take away about a third of Planned Parenthood's funding. And what that would translate into in terms of closures is a little bit more complicated and may not be evenly distributed across the universe of Planned Parenthood affiliates. It'll depend on a variety of things like whether fundraising can cover some of those losses, whether Planned Parenthood can try to run out the clock, because at least at the moment, the big, beautiful bill, that provision of it is set to expire in a year just in time for the midterms.

22:52It could obviously be extended, but at the moment it hasn't been. So we do know it's going to have some pretty devastating effects on Planned Parenthood. we've already seen some affiliates closed, but exactly what beyond that I think we still have to see. Planned Parenthood went to court and argued that the law's pause on Medicaid reimbursements amount to a targeted exclusion that violates the Constitution. Tell us about their arguments. They argued first that the big, beautiful bill was actually punishing Planned Parenthood for its expression and its speech. So the argument was that the bill was penalizing affiliates not for performing abortions, but for associating with Planned Parenthood, an organization that advocates for reproductive rights.

23:34And the logic was Planned Parenthood can't get the money back, an affiliate couldn't get the money back by simply not providing abortions itself. It would have to disaffiliate from Planned Parenthood. There was a related argument under the Equal Protection Clause. And then the final argument that this amounted to what's called a bill of attainder, which is when the legislature punishes someone for past conduct without a trial. So Planned Parenthood was arguing that this bill amounted to a punishment of Planned Parenthood for having done abortions in the past or advocated for abortions in the past.

24:04So those were the arguments that are really at the center of the case. And why did the judge fine for Planned Parenthood? Yeah, the judge agreed with Planned Parenthood on all three arguments, essentially enjoining the big, beautiful bill permanently on all three grounds. So this was, you know, at the moment as big of a win as Planned Parenthood could have asked for. Was Planned Parenthood saying if the Medicaid reimbursements were stopped, they'd go out of business? There's varying estimates. I mean, I've heard that a significant number of affiliates would close. It's not really that Planned Parenthood altogether would go out of business, because as the case makes clear, Planned Parenthood is not just a health care provider.

24:44It's also an advocacy group. And there's no reason to think that every single affiliate will go out of business as a result of the big, beautiful bill. But Planned Parenthood does receive a significant portion of its funding from Medicaid. So we would expect to see a lot of clinics shutter, but how many I think we won't know unless or until really the bill goes into effect for long enough. The judge's July 21st order, preliminary order, has already been appealed to the First Circuit. Do you think the First Circuit is likely to affirm this ruling? It's hard to say, right? I mean, the First Circuit is not known to be a particularly conservative circuit, but some of these arguments are more of a stretch than you might expect.

25:24So the unconstitutional conditions doctrine, which is part of what the judge relied on, right, is essentially not that Planned Parenthood has a right to Medicaid funding, but rather that if Planned Parenthood is eligible for Medicaid funding, you can't have that taken away because it exercised this constitutional right to associate. The problem there is that unconstitutional conditions doctrine is just a mess. like most scholars agree. It's convoluted. It doesn't make a lot of sense, which leaves a lot of room for judges to disagree about how to apply it. And the fight here is really about whether the bill was penalizing Planned Parenthood for providing abortions or whether it was penalizing Planned Parenthood affiliates for associating with an organization that advocated for abortions.

26:06And it's hard to predict which way the First Circuit is going to come down on that. Bill of attainder cases are kind of the same. So there's not a lot of law there. It's a little unpredictable. Just to be clear, Medicaid funds are not used for abortions at Planned Parenthood. So since the 1976 Hyde Amendment, Planned Parenthood has been unable to use Medicaid dollars for abortions. This is just penalizing organizations that provide abortions by depriving them of Medicaid dollars for other services. So some states have already cut Planned Parenthood's Medicaid funding, including Texas and Louisiana.

26:42And did the Supreme Court open the gate for more states to do that? Right, exactly. Yeah. So in a case last June called Medina, the Supreme Court made it easier for conservative states to kick Planned Parenthood out of their own Medicaid program. So just to be clear, Medicaid is a joint state federal program. So states have their own Medicaid reimbursement process, as does the federal government. So what states have been looking to do was to prevent Planned Parenthood from getting Medicaid reimbursement for non-abortion services. It had been unclear until June about whether that was permissible, and the Supreme Court just clarified that it is.

27:26So one of the upshots of that is that really regardless of what happens with the big, beautiful bill, either in court or in Congress, right, because this thing is set to expire and we don't know if Republicans are going to renew it or let it expire because it would hurt them in the midterms. Regardless of what happens with that, we do expect to see more conservative states taking aim at Planned Parenthood when it comes to state decade dollars. So let's turn now to this wrongful death lawsuit. A Texas man whose girlfriend used abortion pills to end her pregnancies is suing a California doctor who allegedly mailed her the medication.