While it remains to be seen whether and how the Trump administration tries to legally help Ghislaine Maxwell — such as by pardoning her or moving to reduce her 20-year prison sentence — the Jeffrey Epstein co-conspirator is still pressing her case at the Supreme Court. On Monday, Maxwell filed her reply brief to the justices, making a final plea for them to consider her appeal.
Her court filing is a typical one that falls against the backdrop of the atypical political situation sparked by backlash from President Donald Trump’s supporters in response to his administration’s decision not to release additional information related to Epstein, who died by suicide in 2019 while awaiting trial on child sex trafficking charges.
When someone petitions the Supreme Court to take their case, the opposing party can then file an opposition brief, and then the petitioner can file a reply. That third type of filing is what Maxwell’s lawyers lodged with the justices on Monday.
The legal issue she’s pressing involves the unusually broad non-prosecution agreement secured by Epstein in Florida in 2007.
In it, they attempt to reinforce the arguments made in Maxwell’s petition filed in April. The legal issue she’s pressing involves the unusually broad non-prosecution agreement secured by Epstein in Florida in 2007 that said, in part, that “the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein.”
Maxwell argues the agreement bars her subsequent sex trafficking charges in New York. She presents the matter as an opportunity for the justices to resolve a split among the federal appeals courts, regarding whether a promise on behalf of the “United States” or the “Government” that’s made by a U.S. attorney in one district binds federal prosecutors in other districts.
The Justice Department opposed Maxwell’s petition on July 14. In its opposition brief, the DOJ wrote, among other things, that while “the United States” could conceivably refer to the entire federal government, “the entirety and context of the NPA [non-prosecution agreement] here make clear that the term is used — as it often is — as one alternative way to refer to the USAO [U.S. attorney’s office] executing the agreement.”
The U.S. Court of Appeals for the 2nd Circuit rejected Maxwell’s appeal last year. A circuit panel cited circuit precedent that says agreements only bind the U.S. attorney’s office in the district where the agreement is entered, unless it affirmatively appears that the agreement contemplates a broader restriction. There’s “nothing in the NPA that affirmatively shows that the NPA was intended to bind multiple districts,” the 2nd Circuit panel said, referring to Epstein’s non-prosecution agreement.
So, what happens now?
The justices receive thousands of petitions annually and grant review in well fewer than a hundred, so the odds are against almost any petition. Unlike the court’s so-called shadow docket cases, which can be decided at any time after all the court filings are submitted, a full petition like Maxwell’s is considered in a more deliberative fashion. It will be put on for one of the court’s forthcoming private conferences, at some point after which we will learn what the justices decide. The docket in Maxwell v. United States will reflect when the petition is put on for such a conference, but it does not yet contain such a notation. The justices receive thousands of petitions annually and grant review in well fewer than a hundred, so the odds are against almost any petition. It takes four justices to grant review. The court is currently on a summer break, of sorts, with the justices slated to come back in the fall for their next term, which starts in October. Maxwell’s court filing doesn’t refer to the unusual out-of-court developments like her meeting last week with Deputy Attorney General Todd Blanche, one of Trump’s former personal lawyers. But her attorney, David Oscar Markus, made a direct appeal to Trump on Monday in connection with the reply brief. He said: No one is above the law — not even the Southern District of New York. Our government made a deal, and it must honor it. The United States cannot promise immunity with one hand in Florida and prosecute with the other in New York. 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. 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 crimes, especially when the government promised she would not be prosecuted. There isn’t a set date by which the court must decide whether to take up Maxwell’s appeal. But by the time the justices decide, the administration’s plans may have become clearer in terms of what sort of help, if any, it might want to give her. If it turns out the answer is that the government doesn’t want to help her at all, then this Supreme Court appeal could become all the more pivotal for her. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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