This is Bloomberg Law with June Brossel from Bloomberg Radio. Elane Maxwell is serving a twenty 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 two thousand and seven, and Maxwell argues it should have
barred her prosecution in New York fourteen years later. Joining me is former federal prosecutor Robert Mintz, a partner Macarter in English. Bob start by telling us about this broad non prosecution agreement that Epstein reached with federal prosecutors in two thousand and seven.
The document that's at the heart of the Galaine Maxwell appeal to the Supreme Court is a non prosecution agreement that was signed in two thousand and seven with the US 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. And that is the language that Maxwell's lawyers have lacked onto to argue that her subsequent sex trafsking 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 US attorney bind other US 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.
So to have language as broad as that which says that the US attorney in the southern districts 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 n on prosecution agreement US attorney is also promising not to prosecute anyone else? Does that happen?
Typically, what a plea ariement will say is that in exchange for a plead or particular crime, the US Attorney'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 appeal to the Second Circuit Court of appealed, the Second Circuit did not agree that that plea agreement barred the prosecution in New York that was ultimately against Gallaine Maxwell.
That Epstein non prosecution agreement has been widely criticized. In fact, the Justice Department said in twenty twenty that then US 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 appeals to the Supreme Court is whether a promise on behalf of the United States that is made by one US attorney in one district combined federal prosecutors in other districts. But it really is more complex than even that, because here it involved not a situation where the individual who pled guilty in Florida is being prosecuted by another US attorney's office and
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 barres a prosecution of Glaine 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 US Attorney's office in the Southern District of Florida. And therefore that language, as Glaine Maxwell' attorneys are arguing, is really being taken out of context because
it really involved 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 US Attorney's offices as against the individual who's pleading guilty in Florida. But also here talking about another individual, not even a party to the Florida agreement, who's trying to use it as a bart prostitution in another district.
The Justice Department file paper is asking the Supreme Court not to take Maxwell's case.
Yeah, 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.
Gleam 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 received thousands of petitions every year, and they grant review in fewer than one hundred, so the odds of the Supreme Court granting review here are pretty slim.
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 appeal to the Supreme Court but also appeal to President Trump, saying, quote, President Trump built his legacy in part on the power of a deal, and 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 the court filing in the form of this petition to the United States Supreme Court that, on his face, is fairly typical.
They're raising a le issue. They're arguing that there is a split in the federal circuits, 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 US 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.
On 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 really 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 mans 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 Delanne Maxwell for Epstein's crime, especially when the government promised he
would not be prosecuted. So 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 unlike 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 Blanche for two days. She was also subpoena 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 inten to ask her, and he asked that the deposition be rescheduled until after her appeal is resolved
before the Supreme Court. The 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 there 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, and he is arguing that her testimony before the committee could compromise her constitutional rights to prejudice her legal claims and could potentially take a future jury if the Supreme Court were
to take the case and overturn the lower course 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 in condition that Maxwell's attorneys put on her agreement to testify before Congress, was this grant a formal immunity that witness immunity comes in several forms, or something called transactional immunity, which is a blanket or a total immunity which completely protects a witness from future prosecution
for crimes related to their testimony. Then there's something called use or derivative use community, 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, and 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 Galaine 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?
So there are essentially two ways of prosecutors use grand curies. One is as an investigative tool. The other is as a means for obtaining and a diet. 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 dasent, or some other representative of a federal agency, and 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. If 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 the 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 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 an usual Now it is less 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 dix E
is because there is a decision that's made. An information that does not ultimately lead to an indictment so 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 they'll never be a trial they'll never be a core proceeding, and it really is simply a guilt by
association in some cases, which is what the grand jury is designed expressly to prevent.
A lot of issues around these Epstein files. Thanks so much, Bob. That's former federal prosecutor Robert Mints of Macarter and English. In a set back 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. Massachusetts judge in Derah Talwani 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 Chump'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 planed paranoid 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 cloth. Because at least at the moment, the Big Beautiful build that provision of it is set to expire in a year, just in time for the midterms. It 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 plan Parenthood. We've already seen some affiliates close, but exactly what beyond that, I think we still have to see.
Planned Parenthood went to court and argued that the laws paw 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, and the logic was Planned Parenthood can't get the money back, and 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 cause, 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. So 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 in joining the big beautiful builds 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, it's also an advocacy grow and there's no reason to think that every single affiliate will go out of business as a result of the big, beautiful build.
But Planned Parenthood does receive a significant portion of its funding from Medicaid, so we would expect to see a lot of clinic shutter. But how many, I think, we won't know unless you're until really the bill goes into affect it for long enough.
The judges July twenty first Order preliminary Order has already 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. So that 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 colors 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. And it's hard to predict which way the first circuit it is going to come down on that. Some of the tainder 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 nineteen seventy six High Amendment, Planned Parenthood has been unable to use Medicaid dollars for abortions. This is just punalizing organizations that provide abortions by depriving them of Medicaid dollars. For other service.
So some states have already cut Planned Parenthood's Medicaid funding, including Texas and Louisiana. And 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 had 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. So 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 a kate dollars.
So let's turn out 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. Tell us about this lawsuit.
So this is another interesting lawsuit. It's being brought by Jonathan Mitchell, who is a famous anti abortion attorney who's probably best known as being the architect of Sbaight, the Texas Bounty Bill.
But it was filed in federal.
Court, which is interesting, and it argues that a California doctor mailed pills not only to a woman, but a woman and her kind of estranged ex husband who is pressuring her to have an abortion allegedly, and that happens and constituted a wrongful death. It's interesting for a number of reasons, because why was it a wrongful death if in fact it's not a crime in Texas for a woman to and her own pregnancy. The answer that the lawsuit offers is complicated, but partly that federal law makes
it a crime allegedly to male abortion pills at all. Right, So this is an effort to turn the Comstock Act, this nineteenth century obscenity law, into an abortion man. It's a vehicle for that, and it's also I think a vehicle for abortion opponents who are impatient with some of the lawsuits we've already seen. So Texas, for example, has parted it a New York abortion doctor for violating Texas
state laws. But that's been going quite slowly, right. The action hasn't moved to federal court there, and I think this is an effort to kind of start process in federal court and maybe expedise the resolution of some of these questions of otus, especially when it comes to the Comstock Act. But not only to that.
Mary, We've talked before about the threat posed by the Comstock Act on the mailing of abortion pills. It hasn't been used. What in decades does it still stand? Are there any problems with the Comstock Act itself?
Yeah, so it's complicated, right, I mean, the Comstock Act has been enforced in recent decades, but only really in kind of a rare handful of cases involving things like child pornography, So it hasn't been enforced in cases involving abortion much to speak of at all since the nineteen teens. So, you know, there are a number of problems with the argument. It's not clear that the Kombstock Act was intended to
ban the mailing of all abortion related items. That doesn't seem to have been what courts thought in the nineteenth or early twentieth centuries. Then there's just whether it's constitutionally permissible to have a zombie law like this pick back in and criminalize a bunch of conduct that everybody thought was fine. Whether that raises due process or fairness concerns is something the courts would have to resolve too. But again, you know, it's not obvious that this case will we'll
get all the way to the Supreme Court anyway. Jonathan Mitchell and other abortion opponents have been trying to find a vehicle to get the Comstock Act of the Supreme Court for several years now and yet without any success.
Right So, whether this proves to.
Be the magic blow, we'll.
Just have to see. And so he's tried other lawsuits, these wrongful death kind of lawsuits over abortions in state court. Is this a new attempt to take it to federal court?
Yeah, it's a new attempt to take it to federal court. It's also significant who the plaintiff is in this case. A previous wrongful death suit that mister Mitchell filed similarly a kind of man suing his partner. The man ended up having a pretty unsavory background. There were lots of text messages and other data indicating that he had been controlling, that he had done a lot of unflattering and worrisome things that kind of painted the lawsuit in a pretty
damning light. So I think this is an attempt to go to federal court to get the comstock question addressed directly with a plaintiff who isn't as unappealing as the last plaintiff. Right, there's an attempt. I don't know if it will work. This is kind of an abersion coercion situation. The lawsuit alleges that the woman having these abortions was being pressured by her estranged husband and to some extent by his family, and that she would have preferred to
carry these pregnancies to terms. The old lawsuit was very critical of the woman who had the abortion in her friends, so it was sort of, you know, it looked like men telling women what to do. This lawsuit is sort of presenting itself as men defending women against coercive men. Whether a judge sees it that way or whether the facts bear that narrative out remains to be seen.
It seems like the facts are a little odd. She's still married to someone else. Does the boyfriend even have standing to sue?
Right? I mean, genetically, there's an interesting question. I mean, I think obviously, you know, we're in an era now where biological fathers can have rights. You know, it's not just the sort of old knaws of marital fathers are the only people with rights in this situation. But to your point, they are interesting questions about whether the plaintiff is in fact a biological father. I'm not sure how that could have been determined.
The facts here seemed to leave a lot of open questions. So why bring a suit that you want to gain attention with this fact pattern?
I think the goal is to have a story about abortion coercion, But like you said, it's kind of complicated. A lot of things are unclear, right, like who who was the father of the fetuses or unborn children who are being aborted?
Right?
And how is that being determined? To what extent was their coercion or to what extent was this just a woman in a complicated romantic entanglement who wasn't sure what the right thing to do with It was hard to figure out what was exactly going on, even though this was just the plaintiff's version of events. So I imagine that if the plaintiff's version of events is this hard to understand, their reality is that much more complicated.
You mentioned Czechis and Louisiana are pursuing legal actions against a New York doctor who prescribed abortion pills to patients in those states. New York has a shield law, so is it a question of which state's law to follow? Can one state tell another story what to do.
Yeah, that's part of the complexity of both the Strongfold death suit and the Texas and previous Louisiana cases that we've spoken about before. So when one state is fighting another state, things get complicated under the full faith and credit clause and also choice of law. So the full faith and Credit claus is generally that when the courts of one state reach a final judgment, the courts of
the other state have to honor that judgment. That's generally how things work, but it gets complicated because there's sometimes exceptions to that rule, and there can be complexities when they're multiple dueling judgments. You could have courts and different states reaching different outcomes, and then those courts have to decide which state's law even apply when they're resolving these questions. So far, the Texas and Louisiana suits haven't gone very
far in resolving these questions. They haven't even asked federal courts to get involved. So I think part of what you're seeing in this case is Jonathan Mitchell trying to go directly to federal courts, even though a lot of what he's asking this federal court to weigh in on is state law questions, because a lot of his case is saying this is a wrongful death because of Texas
state law. Even though there is this Comstock Act claim, a lot of the rest of why it's supposed to have been a wrongful death is based on Texas state law. So it's a little odd that of federal judges the first person being pasked with resolving those questions. But strategically I think it's again because mister Mitchell's interested in seeing federal judges weigh in on the Comstock Act and is probably frustrated that Texas and Louisiana haven't yet escalated their cases to federal court.
So another abortion related decision, the Court of Appeals for the Fourth Circuit rule that West Virginia can block access to myth of pristone. Yeah.
So, there had been a several lawsuits that had proceeded in the Biden years arguing that the FDA's rules permitting access to myth of pristone under certain circumstances preempted contradictory state laws criminalsing myth of pristone, including West Virginia's abortion ban. And the theory was that FDA rules that a uniform federal standard that's meant to govern nationwide and that state laws you know, which are trumped by federal law couldn't
conflict with that. And the Fourth Circuit disagreed with that. It certainly doesn't permanently resolve the question. I mean, the plaintiffs in that case could appeal. There are other circuits that could resolve such a question, but it was one of the ways that works and rights supporters were hoping to use the FDA's current rules on mytha pristone to limit state bans, and that hasn't worked to date, and so.
What could the state do to make it harder for women to get MYTHI pristone or since it's going through the mail, right, So.
We're seeing a whole bunch of efforts to answer that question. Actually, as we speak, one of the most important is taking place in Texas. Texas had a kind of what you'd consider a model bill to target abortion pills. It is kind of a massive pill that touches on everything from the advertising of abortion providers, to internet servers that carry information about abortion, to abortion funds that help low income patients to address abortion, to creating a state law equivalent
of the Comstock Act. This was sort of like an abortion pill megabill, right. And surprisingly, this legislation had been introduced during a regular legislative setition in Texas and it didn't pass. So the governor of Texas announced a special session and it's expected that the bill will be taken up again. Then again, it's unclear whether this bill will pass, but if it does, it could be a model for
other states trying to take on abortion pills. The challenge, as you mentioned, is that ultimately these pills are coming from out of state, and without some kind of federal action, either from a federal court or from the Trump administration, and most likely from both, states are still going to be somewhat hindered in their ability to take on abortion pills.
And what's been happening with the abortion trafficking bills in some states.
There have been a bunch of developments. Idaho reached a settlement where it wouldn't prosecute people for referring for out of state abortions. There have been a number of challenges to those bills on the free speech side of things that have been kind of going either subtle or going the way of abortion providers. So that's another thing to watch, especially as this abortion pill megabill moves forward in Texas.
There's an interesting question about whether that will raise free speech concerns that will eventually do this because we're seeing kind of warning signs both in these settlements and in litigation when it comes to free speech and access data state aborsion.
It's hard to keep track of all the different abortion related issues going on across the country. Thanks so much, Mary Best. Professor Mary Ziegler of UC Davis Law School and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg