Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
Jeffrey Epstein dodged justice the first time he faced criminal charges for trafficking and molesting children, exploiting a combination of wealth, influence, vile attack-the-victim tactics and an incompetent prosecutor, then-US Attorney for the Southern District of Florida and current US Department of Labor Secretary Alex Acosta. This time, however, Epstein is likely cooked. He faces charges likely to keep him behind bars for the rest of his life. The famously aggressive and independent Southern District of New York (where I worked for eight-plus years) has indicted him on charges of running a sex trafficking ring in which he allegedly sexually abused dozens of girls. Neither SDNY nor a public spotlight will permit a hush-hush sweetheart deal like Epstein got in Florida. The big question is, as the SDNY takes down Epstein, who else will go with him?
When he first faced sex trafficking charges in Florida in 2007, Epstein skated. His powerhouse team of attorneys somehow worked with Acosta to craft an agreement that was staggeringly unjust. Epstein faced decades behind bars but Acosta let him go with a plea to two minor state-level charges (for which he was sentenced to 13 months behind bars but served most of it on work release). The deal also inexplicably immunized Epstein’s co-conspirators. In 14-plus years as a prosecutor, I’ve never even heard of the concept of giving a free pass to a defendant’s co-conspirators. Worse, as a federal judge ruled recently, Acosta violated the rights of Epstein’s victims by entering into the sweetheart plea deal without notifying them first, as the law requires.
The New York indictment was unsealed Monday and details allegations that between 2002 and 2005, Epstein ran a trafficking outfit in which he paid hundreds of dollars to girls as young as 14 to have sex with him at his homes in New York and Florida and worked with employees and associates who would lure these girls there and paid some of them to recruit others for similar abuse. CNN has reached out to Epstein’s lawyer for comment. In a press release, the US Attorney’s office said, “Epstein created a vast network of underage victims for him to sexually exploit, often on a daily basis.”
Things now look bleak for Epstein. Simply being charged by the SDNY is, in itself, a defendant’s nightmare. According to Justice Department data, the conviction rate on federal charges is typically over 90%, and the conviction rate in federal human trafficking cases is even a tick higher than that. Much of the case likely will center on testimony from Epstein’s victims. While Epstein’s attorneys in Florida cowed Acosta in part through a vicious campaign to attack the victims, the SDNY needs to stand firm. I’ve done sex trafficking cases, including a trial based largely on the testimony of victims. In my experience, victims typically have no reason to lie, and juries can and will believe victims, particularly if their voices are supported by other evidence. Knowing the SDNY, they’ve likely got other corroborating evidence – perhaps phone records, financial documents, e-mails or texts or travel records – to back up the victims.
Epstein has three choices now. First, he can go to trial; the vast majority of defendants who go to trial in federal court get convicted, which almost certainly would send the 66 year-old Epstein to jail for the rest of his life. And a trial will certainly cause what prosecutors call “collateral damage”: other wrongdoers – Epstein’s co-conspirators and enablers in the alleged sex trafficking ring – will be named publicly, and the proof of their conduct will come out.
Second, Epstein can plead guilty without cooperation. But it seems unlikely that the SDNY will give Epstein anything remotely approaching the absurdly soft deal he got in Florida. Given the severity of the charges, I’d be surprised if SDNY prosecutors let Epstein plead to anything less than a decade behind bars, without his cooperation.
Third, Epstein can cooperate. This is Epstein’s best chance to reduce his sentence significantly. In the SDNY, however, cooperation is all-or-nothing: a cooperator must tell prosecutors everything he knows about his own conduct and the conduct of others, including on the charged crimes and everything else. When I was with SDNY, I had cooperators originally charged with drug offenses who ended up providing information about murders. Cooperators cannot pick and choose and cannot provide information selectively. That’s simply how it works in the SDNY. (Just ask Michael Cohen, who received a blistering sentencing letter from the SDNY because he was willing to answer some, but not all, of their questions). So if Epstein does cooperate, he will have to name names. It remains to be seen whether the SDNY even wants to cooperate with Epstein, given his grotesque conduct.
We do not know if Epstein will cooperate, but even if he does not, others will very likely be implicated. It seems clear from the indictment that others helped Epstein run his alleged sex trafficking operation and otherwise participated in it. At least some of those names will come out in court proceedings, public filings, potentially trial and perhaps additional indictments. And it’s worth noting that the Epstein case is being handled by the SDNY’s Public Corruption Unit – in my experience, human trafficking cases usually are handled elsewhere in the office – which strongly suggests that public officials could be under a microscope here. Anybody who helped Epstein in any way needs to get a lawyer and get scared.
Now, your questions:
Glen, Minnesota: I’ve always heard of the checks and balances in our government. What checks are there, if any, on a Supreme Court decision?
There are Constitutional checks on the Supreme Court itself, but not on its decisions.
Systemically, the Constitution gives the Executive Branch (through the President) the power to nominate justices to the Supreme Court, while the Legislative Branch (Congress) can confirm or reject those nominations. The Legislative Branch also holds constitutional power to impeach Supreme Court justices.
But there is essentially no check on the decisions reached by the Supreme Court. There is no higher court and no way parties can appeal to some other court. At times, the Supreme Court leaves the door open to future revision of its own decisions, pending further developments. We saw this recently when the Court ruled against inclusion of a citizenship question on the census, but gave the Trump administration a chance to come back and attempt to show a legitimate legal basis to include it. That involves the Supreme Court leaving its own door open, not some other body of government imposing its will on the Court.
Ultimately, what the Court says, goes – whether the President or Congress like it or not. An executive order, which Trump has contemplated on the census issue, simply does not override a Supreme Court decision under our Constitutional structure. The only way a Supreme Court decision can be overridden is with a constitutional amendment (the most notable example being the 14th Amendment, which in 1868 overturned the 1857 Dred Scott v. Sanford decision by granting citizenship to all those born in the US, regardless of color).
The Supreme Court also can overrule its own prior decisions, as it did in 1954 when Brown v. Board of Education overturned the 1896 Plessy v. Ferguson case which had upheld racial segregation under the “separate but equal” doctrine. Supreme Court reversals of its own precedent are rare, and often take many years, as judicial and social norms evolve.
As former Justice Robert Jackson famously noted of the Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final.”
Mamood, Canada: How does the justice system handle situations where a witness given immunity protects a defendant by confessing to a crime?
It sounds like a twist from a Hollywood courtroom thriller, but this happened recently in the controversial military prosecution of former Navy SEAL Eddie Gallagher for murder. The prosecution called to the stand a medic who testified under a grant of immunity – meaning that the medic’s own trial testimony cannot be used to prosecute him in the future – that he saw Gallagher stab the victim. But the medic then testified unexpectedly, and contrary to his own prior statements, that he, not Gallagher, killed the victim by suffocating him during medical treatment. The jury acquitted Gallagher on the murder charge and all others except one relatively minor offense for which he was sentenced to no additional jail time.
The prosecutor now has a few options available. First, if the prosecutor can prove that the medic lied on the stand, then he can charge the medic with perjury (indeed, Gallagher’s prosecutors are considering a perjury charge against the medic). Immunity does not cover perjury; it essentially means “we will not prosecute you based on your own trial testimony, unless you lie.” And if the prosecutor can prove that Gallagher, or any other person, encouraged the witness to lie, then that person can be charged with witness tampering.
The medic also can theoretically be charged with murder, but that charge cannot be based on the medic’s own trial testimony, under the grant of immunity. If, however, the prosecutor can find other evidence of the medic’s guilt – for example, if somebody had taken a cellphone video showing the medic actually suffocating the victim – then the medic can be charged with murder. But the prosecutor cannot use the medic’s immunized trial testimony against him to prove that charge.
Dan, New Mexico: How can the Supreme Court justify its decision to permit gerrymandering even if the stated purpose is for one party to gain a more favorable election outcome?
The Supreme Court ruled by a 5-4 vote along ideological lines – conservatives John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh in the majority and liberals Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting – that the federal courts have no role in reviewing “gerrymandering” (the process of drawing political districting maps, often for political advantage). The Court deemed gerrymandering a “political question” best left to elected lawmakers and “beyond the reach of the federal courts.”
In non-legal terms, the Supreme Court ducked. The Court found that the specific districting maps before it (from Maryland and North Carolina) were “highly partisan, by any measure” and “blatant examples of partisanship driving districting decisions.” Yet the Court concluded that gerrymandering is up to elected policymakers, and that there is no reliable way for federal courts to determine precisely how partisan is too partisan.
The dissent takes heated issue with the majority, calling the decision “tragically wrong” because extreme partisan gerrymandering poses a threat to fundamental constitutional rights “to participate equally in the political process.” The dissent also notes that federal courts have monitored partisan gerrymandering for many years and that “[f]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”
As the Supreme Court notes, its decision does not necessarily open the door to unchecked partisan gerrymandering, because state legislatures, Congress and state courts can exercise oversight. But the federal courts – which are well-positioned to limit extreme gerrymandering because they stand above and apart from local or state politics – are now out of that business.
Three questions to watch for next week:
1. Who else will be implicated in Epstein’s alleged sex trafficking ring?
2. Will Trump issue an executive order purporting to override the Supreme Court on the census issue, and will the Administration take other steps to continue its legal fight to include the citizenship question?
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3. Will Congress finally go to court to enforce the subpoenas that Don McGahn and others thus far have defied?