Weekend Law: Attack on Judges, Chaos in NJ Courts & Ghislaine Maxwell

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2:03But Maxwell is also exhausting her legal options. This week, she 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. Maxwell argues that agreement should have barred her prosecution in New York 14 years later. The Supreme Court says the justices will review Maxwell's case along with others at their first private conference after summer break on September 29th. My guest is former federal prosecutor Robert Mintz, a partner with Carter and English.

2:45Bob, tell us about this broad prosecution agreement that Epstein got in 2007. The 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. 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.

3:37And 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.

4:23So 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, the U.S. attorney is also promising not to prosecute anyone else. Does that happen? Typically, what a plea agreement will say is that in exchange for a plea to a particular crime, the U.S.

5:07attorney'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.

5:51That 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.

6:37attorney's office in another part of the country. We're talking about another person who is 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.

7:24Attorney'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. attorneys' 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.

8:02Yeah, 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.

8:43That'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.

9:30And 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.

10:06On the other hand, And 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 Ghislaine Maxwell for Epstein's crime, especially when the government promised he would not be prosecuted.

11:05So 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 Supreme Court filing doesn't refer to the, let's say, unusual out-of-court developments, like her meeting for two days last week with the Deputy Attorney General and the House Oversight Committee subpoenaing her to testify. Her attorney had a list of conditions for her testimony, including a grant of formal immunity, the committee's questions in advance, and the testimony could only take place after the resolution of her Supreme Court petition and a habeas petition that hasn't even been filed yet.

11:55And if the conditions aren't met, Maxwell would plead the fifth. Are these conditions within the bounds of what a defense attorney would normally ask for a client who's still appealing a conviction? 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.

12:31And 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. Also, waiting for the resolution of the Supreme Court petition and the filing and resolution of a habeas petition effectively puts off her testimony for an undetermined amount of time.

13:08And Maxwell will be serving that time at a minimum security prison camp in Texas, where she was transferred this week without any explanation from the Federal Bureau of Prisons. Thanks for the conversation, Bob. That's Robert Mintz of McCarter in English. Coming up next, the Justice Department escalates its fight with the federal judiciary. I'm June Grosso, and you're listening to Bloomberg. Quick one before you jump back in. You're listening for ways to help teams move faster, make sharper decisions, and turn scattered context into work they can use. ChatGPT for Business can help. ChatGPT for Business gives teams a shared workspace with admin controls, permissions, and access to work and codecs in ChatGPT.

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16:05President Trump has called Boesburg a radical left lunatic of a judge, a troublemaker, an agitator, even calling for his impeachment. That led to a rare public rebuke from Chief Justice John Roberts in March. And Attorney General Pam Bondi has repeatedly criticized Boesberg. This judge has no right to ask those questions. You have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over. This judge had no right to do that. They're meddling in foreign affairs. They're meddling in our government. And the question should be, why is a judge trying to protect terrorists who have invaded our country over American citizens?

16:58And then, of course, Boesburg trying to control our foreign policy. These judges are out of control. We are going to fight back and we are going to win. And the Justice Department is fighting back by filing an ethics complaint accusing Judge Boesburg of misconduct for a comment he allegedly made at a private meeting of judges. My guest is constitutional law expert David Super, a professor at Georgetown Law. David, why is the administration focusing so much on Judge Boesberg? Cases are assigned to district judges randomly. Judge Boesberg had the misfortune of drawing the first case involving the Trump administration's bizarre application of the Alien Enemies Act in a non-wartime situation.

17:47and he did what any competent judge would do, which is declare it illegal. The complaint focuses on a March session of the Judicial Conference of the United States, a panel of judges led by Chief Justice John Roberts. The Justice Department accused Boesberg of raising, quote, concerns that the administration would disregard rulings of federal courts leading to a constitutional crisis, and said his comments violated a section of the Code of Conduct for federal judges, which says that they should not make any public comment on the merits of a matter pending or impending in any court. If he did, in fact, say this, is it out of bounds for a judge at a meeting that's supposed to be private to say something like that?

18:34No, of course not. This complaint doesn't pass the last test. It's not a public statement. It's a statement with only judges present. I would love to attend meetings in this judicial conference, but I'm never invited. I'm sure you would, too. It's a private meeting. By this reasoning, someone should bring a complaint against Justice Alito for indicating that he thought Roe v. Wade should be overruled and circulating his draft opinion in Dobbs, which later became public. Judge Boesberg is not responsible for other people leaking memos about things he said in private meetings among judges any more than Justice Alito would be responsible for the leak of his draft opinion that he shared with other justices.

19:16In the complaint, the Justice Department also says that Judge Boesberg had no basis for saying that because the Trump administration has always complied with court orders. But the administration violated Boesberg's verbal order in this very case. Judge Boasberg's role on the judicial conferences is a representative of district judges in the District of Columbia. He is responsible for reporting what judges on his court are concerned about, and it would be their election of his duty if he didn't report concerns that they had. Judges on his court had found the administration to be out of compliance with a number of court orders.

20:00by administration officials, certainly including the vice president, arguably including the president, had mused about whether they would honor court orders on various topics, even Supreme Court orders, certainly orders of district courts. And the question of how to deal with the administration violating court orders had already been up and down to the Supreme Court by that point. Obviously, it was something they were concerned about. He was not, as we've been told, expressing his own views, but rather the views of other judges on his bench. I'm sure at other times the chief judge of the District of Columbia may have reported that they feel inundated with fentanyl cases or they feel inundated with crystal meth cases.

20:50This is a place where judges talk about the challenges of maintaining the judiciary. He was doing exactly what he was supposed to be doing. Is it concerning that apparently a memo of the meeting was leaked to the conservative website, The Federalist? Well, the judicial conference is representing judges and the business about it. So memos of what happened at this meeting do get circulated to judges. President Trump has made point of appointing members of the Federalist Society to the judiciary. So many Federalist Society members received this memo, and one of them apparently chose to leak it to the Federalists.

21:30And this comment that Boesberg allegedly made is presented in isolation in the complaint. You don't know what conversations preceded it and what conversations followed it. There's no context. Well, it is. And they describe his comments as being uncalled for, but they don't give us any context to suggest that they weren't. And again, Judge Boesberg's role there was to bring to the judicial conference concerns by judges on his court. And judges reacting negatively to administration officials and Republican senators suggesting that they disregard court orders would be an obvious thing to discuss.

22:14He doesn't indicate what the point of the agenda was, what prompted this, or what anyone else said afterwards. Moreover, the Code of Judicial Conduct prohibits comments on the merits of the case. This is not a merits issue. This is an issue about what does the court do when it has decided the merits and one of the parties doesn't comply. The Justice Department also complains about his handling of the case involving the alleged Venezuelan gang members, saying he rushed the government through complex litigation, sometimes giving the Trump administration less than 48 hours to respond. Well, the rushing was by the administration.

22:57The administration could have agreed to suspend flights until this matter was litigated and the parties could have submitted their papers in due time. The administration was in physical control of all of these people. It had no need to send them to El Salvador. It chose to do it in a great hurry. And that led to a quick response from Judge Judge Bozmer, many judges would not have given the administration any opportunity to respond at all when enjoining a crisis that was entirely of that party's making. Judge Bozmer bent over backwards to be considerate of the administration and to accommodate the schedule, which they insisted was very urgent, even though they never explained why.

23:42If you have a problem with the judge handling your case, does a litigant file a misconduct complaint or wait for the appeal? If what the judge does is sufficiently egregious, you can file a misconduct complaint. It's not out now than appropriate. But what Judge Bosenberg here did doesn't meet any of the requirements of an improper act. It wasn't public. It wasn't on the merits. It wasn't prejudicial. So the normal procedure would be either to appeal or in some instances to move for the judge to be recused. But the standard even for recusal and for appeal is much, much higher than this, and the standard for judicial misconduct is higher still.

24:28You said it doesn't pass the laugh test. What do you expect to happen here? In a normal world, the chief judge of the D.C. Circuit would dismiss this outright because this comes from the Justice Department and from an administration that has been exceedingly vindictive and has crossed lines that none of its predecessors have in criticizing sitting judges. The chief judge may refer it to a panel, but those judges would then dismiss it. We've talked before about this. This is the latest in a string of confrontations of the Trump administration with the federal courts. They filed a misconduct complaint in February against another D.C.

25:10federal judge, Anna Reyes, accusing her of hostile and egregious misconduct for her sharp questioning of government lawyers in the case on the Pentagon's attempts to ban transgender people from military service. And last month, they sued every judge in Maryland over a standing order that blocked the immediate deportation of migrants challenging their removal for two days. Is there a strategy here? Oh, certainly the strategy is to intimidate federal judges. The public criticisms of them, which have led reportedly to spikes in death threats, is part of this. The suggestion that they don't have to follow them, the characterization of them as radical leftists.

25:51Some of the judges they've called radical leftists were appointed by Ronald Reagan, but no mind. So this is all part of a broader strategy to delegitimate the courts, to have people not believe that the courts can determine the law and to have people do entirely what the government says. That's the path to a dictatorship. How unusual is it for the Justice Department to file a complaint against a federal judge? In the past, under other presidents, have Justice Departments taken this course? Almost never. And a good example of that is the behavior of Judge Cannon in one of President Trump's criminal cases.

26:32A number of her rulings were very strange, sometimes self-initiated rulings in favor of Mr. Trump. And the Justice Department, though it had plenty of grounds, didn't even move to recuse her, much less file a judicial misconduct complaint. The ordinary view is that the Justice Department has a strong interest in public respect for the judiciary and doesn't want to undermine it. This administration obviously feels differently. And tell us a little about Judge Boesberg's reputation. Judge Boesberg is an extremely thorough, extremely smart judge. He basically gives you what you get. If you give him a serious argument, he'll either rule in your favor or give you a careful analytical reason why he won't.

27:15If you give him a silly argument, he will say so and not dignify it with a lot of extra words. He's very hardworking, very attentive to the law. He has ruled in the Trump administration's favor on a number of matters, including involving the Alien Enemies Act, because he felt the law was in their favor. He's not a partisan. And by the way, the D.C. appellate court has not yet addressed the complaint against Judge Reyes for her sharp questioning of government lawyers. I will point out that the standard was that lawyers shouldn't be sharply questioned. There are only about two judges I ever practiced in front of that I couldn't have filed misconduct complaints against.

27:56The judge I actually drew the most when I was in practice was John Fulham. And I don't believe he ever asked me a question that wasn't sharp. I don't think he ever asked me, how are you, counselor? I think he started with a sharp question and never finished. I won a bunch of cases in front of him, but every single one of his questions was sharp. Well, you have to have a tough skin if you're going to be a litigator. Always a pleasure, David. That's Professor David Super of Georgetown Law. Coming up next, challenges to Alina Habba's authority over the U.S. Attorney's Office in New Jersey leads to chaos in the federal criminal courts there.

28:30I'm June Grosso, and you're listening to Bloomberg. Quick one before you jump back in. You're listening for ways to help teams move faster, make sharper decisions, and turn scattered context into work they can use. ChatGPT for Business can help. ChatGPT for Business gives teams a shared workspace with admin controls, permissions, and access to work and codecs in ChatGPT. This means your business can move from question to answer and code to rollout quicker. Join over 10 million business and enterprise users worldwide already using ChatGPT for Work. Download the ChatGPT desktop app or contact sales to learn more.