President Donald Trump is correct that he’s legally allowed to pardon convicted sex trafficker Ghislaine Maxwell if he wants to. That fact has nothing to do with Maxwell herself or the specifics of her case; rather, it simply reflects the reality that presidents have broad pardon power.
But is clemency (a pardon or sentence commutation) the only true legal help that the Trump administration could give her?
Not necessarily. Yet, it may be the most legally straightforward, depending on what the administration wants to accomplish.
Another option is a mechanism available to federal prosecutors to seek sentence reductions. But looking at the text of that mechanism, called Rule 35, the Justice Department could have a tough time satisfying its requirements.
That’s because the criminal procedure rule is stricter when more than a year has passed since sentencing, as it has for Maxwell, who was sentenced to 20 years in 2022 for conspiring with Jeffrey Epstein to sexually abuse minors. She’s currently set for release in 2037. In such situations, the rule says that courts “may” reduce sentences if defendants provide “substantial assistance” toward investigating or prosecuting other people, but only if that assistance involved one of three things:
(A) information not known to the defendant until one year or more after sentencing; (B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or (C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
Mindful that we don’t know what Maxwell knows or what she told Deputy Attorney General Todd Blanche in their highly unusual meetings last week, let’s examine each subsection to see the difficulty that the DOJ could face if it wants to go the Rule 35 route.
As to point (A) — “information not known to the defendant until one year or more after sentencing” — it would be odd if Maxwell came into new information only recently. The whole Epstein saga is about things that happened years ago.
As to point (B) — “information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing” — we don’t know what information she might have provided in the past. But Blanche suggested that there hadn’t been any cooperation-type communication between the prosecution and defense until now. Plus, it’s unclear why any information she may have provided in the past would only “become useful to the government” now.
Similarly, as to point (C) — “information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant” — it would seem that any information Maxwell has about prosecuting people related to sex trafficking would have been useful to the government long ago. Indeed, information about potentially prosecuting people can become less valuable over time.
To be sure, the DOJ could still attempt a sentencing reduction motion if it wants to. And perhaps it has, or can develop, a stronger case than it seems to have from the outside looking in. At any rate, the motion would need judicial approval. That raises the specter of another Eric Adams-type situation, following the DOJ’s failure, earlier this year, to convince a judge to let the government dismiss Adams’ criminal corruption case in a way that would have let the administration keep political leverage hanging over New York City’s mayor. Would the DOJ want another drawn-out legal battle only to lose again? (Not that it did much to hurt Emil Bove, the Trump lawyer who led the Adams effort and is poised for confirmation by Senate Republicans to a lifetime judicial appointment.) The Maxwell pardon speculation also comes as she has a pending petition to the Supreme Court to try and overturn her conviction and sentence. The DOJ earlier this month opposed the petition — before Blanche announced he was meeting with Maxwell — and we could learn in the fall whether the justices will take up her appeal. Theoretically, the DOJ could change its position later in the high court litigation to support her, but in addition to that being unusual and possibly unpersuasive to the justices, it would also not guarantee success for Maxwell; the justices still won’t necessarily review her appeal or rule in her favor if they do review it. Ultimately, while it’s unclear how pardoning Maxwell or commuting her sentence would absolve Trump politically from the Epstein affair — wouldn’t it make it seem even more like he’s hiding something? — what could make clemency an attractive legal option is that the power is Trump’s alone to deploy. 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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