Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, 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. This article has been updated to reflect the latest news.
The fallout from the Southern District of New York’s indictment of Jeffrey Epstein has already been seismic: Epstein, a well-connected billionaire, is currently behind bars, and Labor Secretary Alex Acosta has tendered his resignation. And this is just the start. The signs are all there that more people – including the rich, powerful and well-connected – may well tumble as the case unfolds.
How will we learn who else was involved in Epstein’s alleged sex trafficking ring? First, as the Epstein case proceeds, prosecutors will publicly file papers that refer to other participants. But those references likely will be generic rather than specific; when prosecutors name wrongdoers other than the charged defendant, they typically use labels rather than full names to protect the reputations of uncharged individuals and to maintain confidentiality of the ongoing investigation. For example, in a court filing on Michael Cohen, the Southern District alleged that Cohen acted “in coordination with and at the direction of Individual-1” – immediately identifiable as President Donald Trump. But those generic labels are not always so transparent and could leave us guessing who stands behind them.
If Epstein goes to trial, then the whole story will come out, and names will be named. Though over 95% of federal charges get resolved by guilty plea before trial, this case could be different. I do not expect the Southern District to make Epstein any kind of generous plea offer, particularly given the intense criticism that Acosta faced for letting Epstein off the hook in Florida. Nor do I expect Epstein, who is 66 years old, to take a plea that will keep him locked up for much of the rest of his life.
Trial might be the only way to resolve this case. If that happens, we will get the full story of Epstein’s alleged crimes, including the names of any co-conspirators and enablers.
We also likely will see more indictments. It’s clear that Epstein did not act alone. The Southern District alleges that at least three other unnamed people – identified in the indictment as “Employees 1, 2, and 3” – helped Epstein run his multi-state sex trafficking ring. Given the scope and complexity of the scheme, and the number of victims, expect to see more people named as defendants as the case progresses.
We do not yet know who else might be implicated, but we have an important clue: the Southern District is staffing the case primarily with prosecutors from its Public Corruption Unit. US Attorney Geoffrey Berman urged the public “not to read into the unit assignment anything one way or another.” But that is nonsense. You absolutely should read into this staffing assignment.
As a Southern District alum, I know that it is both unusual and significant that the Public Corruption Unit is running this case. Normally, a sex trafficking case would be prosecuted only by the Human Trafficking Coordinators, who are part of the Violent and Organized Crime Unit that I once supervised. Public Corruption is involved here for a reason: there must be at least one public official, past or present, involved in the case in some way.
And there’s precedent. In 2008, the Southern District charged a seemingly routine interstate prostitution ring. Curiously, however, the case was staffed by a prosecutor from the Public Corruption Unit. It turned out that “Client-9” in the case was then-Governor of New York Eliot Spitzer, who resigned days after the charges were announced.
Now, your questions
Michael, California: If you were on the House Judiciary Committee, how would you question special counsel Robert Mueller?
Mueller has made clear he does not want to go beyond the four corners of his report. While there is no legal justification for this arbitrary limit – a subpoena is mandatory and does not allow the respondent to pick and choose what questions to answer – Mueller likely will hesitate, and possibly refuse, to testify beyond what he has already written.
With that impediment in mind, I would focus on the most important and unambiguous of Mueller’s own conclusions. In the report, Mueller lists 11 incidents of potentially “obstructive conduct.” For each, Mueller lists the three legal elements necessary to prove obstruction of justice: (1) obstructive act, (2) “nexus” (or connection) to an ongoing investigation or legal proceeding and (3) corrupt intent. For at least four of those acts, Mueller explicitly finds “substantial evidence” or the like for all required elements – meaning, in practical terms, that Mueller found enough evidence to indict on obstruction based on: (1) Trump’s efforts to fire Mueller, (2) Trump’s efforts to limit Mueller’s probe, (3) Trump ordering former White House counsel Don McGahn to falsely deny efforts to fire Mueller and (4) Trump’s effort to dissuade former campaign chair Paul Manafort from testifying.
For each of these four acts, I would walk Mueller methodically through his findings. For example, I would ask Mueller if he analyzed the three legal elements of obstruction relating to Trump’s efforts to fire Mueller. (Mueller did so in the report and would have to answer yes). I would then ask whether a person can be charged with obstruction if those elements are proved by the evidence. (Undoubtedly yes). Finally, I would ask whether Mueller found substantial evidence to satisfy all legal elements of obstruction on Trump’s efforts to fire Mueller. (Again, Mueller’s report compels a “yes” answer).
I’d then repeat the line of questioning for the other acts. This approach will bring Mueller as close as he likely will go to saying that Trump indeed committed multiple criminal acts of obstruction of justice, while sticking strictly to Muller’s own findings in his report.
There are plenty of other important questions that need to be asked, including many that go beyond the report. But the most important thing will be to get Mueller on record, in plain view of the American public and Congress, about the most flagrant and provable crimes committed by the President.
Next week, in this space, we will run a list of the questions that Cross-exam readers and viewers would ask Mueller. Submit your questions using the form below and check back for the top questions.
John, California: Prosecutors said they found images of young girls on Epstein’s computer. Could this lead to new charges against him?
Yes. Southern District prosecutors wrote in their memo seeking to lock up Epstein without bail pending trial that, in connection with his arrest, the FBI found “a vast trove of lewd photographs of young-looking women or girls in his Manhattan mansion.” The FBI recovered “at least hundreds – and perhaps thousands” of these “sexually suggestive” photos.
This is big trouble – and new trouble – for Epstein. Once the Southern District can confirm that at least some of the people depicted were minors, and that the images in fact contain sexual imagery, Epstein almost certainly will face new charges for downloading and possessing child pornography. Federal child pornography charges carry heavy penalties, including a mandatory minimum sentence of five years in prison. Epstein already was in a world of trouble based on the initial charges of operating a sex trafficking network, and these new charges, if filed, will make his outlook even bleaker.
Greg, Michigan: Can Acosta be charged criminally for failing to notify the victims of the non-prosecution deal in the Epstein case?
Based on what is publicly known, Acosta faces potential civil consequences but not criminal penalties for his inexcusable failure to inform Epstein’s victims of the nonprosecution agreement.
The Justice Department inspector general is investigating Acosta’s handling of the Epstein case. Typically, the inspector general investigates internal breaches of Justice Department policy rather than criminal cases (though the inspector general can make a referral to a prosecutor if he finds evidence of criminality). If the inspector general finds fault with Acosta’s handling of the case, then the consequences for Acosta will be mostly reputational; Acosta no longer works for the Justice Department, so he cannot be fired or otherwise disciplined internally.
Separately, a federal judge has found that Acosta violated the Crime Victims’ Rights Act by failing to notify Epstein’s victims – in fact, according to the judge, misleading those victims – about Epstein’s nonprosecution deal. The judge did not, however, impose any specific penalty on Acosta for the time being. Acosta could face civil claims from victims if they can prove that Acosta’s actions caused them monetary damages. He also could face discipline from his state bar association for violating the law. And the Epstein nonprosecution agreement itself could be voided, which would undermine Epstein’s lawyers’ argument that the Florida deal somehow precludes his current Southern District prosecution.
Three questions to watch
1) Will Judge Richard Berman of the Sothern District lock up Epstein pending trial or release him on bail?
2) Will the White House or Justice Department lodge last-minute objections to try to prevent Mueller’s July 24 testimony?
3) Now that none of the New York police officers involved in the 2014 death of Eric Garner will face criminal charges, will the New York Police Department fire or discipline the officers?