Document 12203000320

Case: 1:20-cr-00320 Document #: 332 Filed: 07/28/20 Page 4 of 457 The Honorable Alison J. Nathan July 28, 2020 Page 4 Moreover, the defendant is able, at any time, to apply to the Court for a modification of the protective order should she be able to identify a particularized need to publicly name victims who have not yet identified themselves on the record in this case—as opposed to redacting their names from court filings, or referring to them in an anonymized fashion. As noted, to date, defense counsel has declined to identify to the Court or to the Government any example of why doing so would be necessary or helpful to the defense, or even under what circumstances the defense might want to do so. The defendant’s proposal is also extraordinarily broad, and without any temporal or subject matter limitation as to the phrase “public fora.” Adopting the defendant’s proposal would mean that any individual who has ever self-identified as a victim of Jeffrey Epstein or Ghislaine Maxwell publicly in any capacity would be subject to public identification by the defendant and her counsel in connection with this case. This would include, as hypothetical examples, someone who spoke to a journalist for a local story in 1997, or posted on a MySpace page followed by a handful of friends in 2005, or made a statement on a small podcast in 2009, or posted on Twitter to a handful of followers in 2013. But none of these examples of ventures into the “public fora” can possibly be construed as efforts by hypothetical victims to consent or choose “to self-identify,” Def. Ltr. at 3, in a future criminal case against Ghislaine Maxwell subject to extraordinary public attention and scrutiny. Additionally, while some individuals have identified themselves as victims without providing any details or additional information about their abuse, the defense contemplates no limitation of publicly associating those individuals with the details of their abuse in public defense statements or filings. In essence, the defendant’s proposal seeks authorization to drag into the public glare any victim who has ever made any type of public statement of victimization—no matter how long ago or how brief—without that victim’s knowing consent and without any substantive justification. That is particularly troubling given that the Government expects to make productions of discovery and 3500 materials well surpassing its obligations. Those productions will necessarily include the identities of individuals whom the Government does not expect to call as witnesses, and whose accounts—much less identities—will have no bearing on this case. But the defendant’s proposal would allow her and her counsel to publicly name them in any public statement or filing at their sole discretion. This is plainly unnecessary for any investigative steps or trial preparation, would be grossly inappropriate and unfair, and would be inconsistent with the Crime Victims’ Rights Act. Conversely, the Government’s submission proposes that the defendant and her counsel not be precluded from discussing publicly individuals who identify themselves on the record in this criminal prosecution, because any such individuals will have made a conscious and informed choice to be associated publicly with this case. See Government Proposed Order ¶¶ 5, 6, 8. The identity of any other individuals should be protected from public broadcast by the defendant and her counsel. The defendant argues that her proposed language is “nearly identical in all material respects” to the protective order entered in United States v. Epstein, 19 Cr. 490 (RMB) (Dkt. 38). Def. Ltr. at 3. In the first instance, that is false. The protective order in the Epstein case included App.059 DOJ-OGR-00019518 --- PAGE BREAK --- The Honorable Alison J. Nathan July 28, 2020 Page 5 a provision stating that it did not prohibit defense counsel from publicly referencing individuals who had spoken on the public record in litigation relating to Jeffrey Epstein. Id. ¶ 4. Here, defense counsel seeks permission to publicly identify any individuals who have self-identified as victims of either the defendant or Epstein “to the media or in public fora, or in litigation”—a vastly broader allowance. Indeed, as a comparison, none of the hypothetical examples described above would have been subject to public naming and identification under the Epstein protective order, but every single one would be under the defendant’s proposed order in this case. Additionally, beyond the differences in the language itself, there are two significant differences between the circumstances of the Epstein prosecution and this case. First, at the time the Epstein protective order was entered, there were exceptionally few victims who had identified themselves by name in litigation. Accordingly, the practical application of that provision was extremely limited. Second, and related, in the time between when the Epstein protective order was entered and the indictment in this case, many more victims have made public statements about their victimization at the hands of Epstein, and the defendant, on their own terms and in their own ways, including by exercising their rights under the Crime Victims’ Rights Act in the context of the dismissal of the indictment against Jeffrey Epstein following his suicide. Those victims could not possibly have predicted, much less chosen, that their names would be publicly broadcast by defense counsel in connection with a subsequent criminal case. Victims should be able to continue to come forward, in the ways and in the venues they themselves choose, without fear of reprisal, shaming, or other consequence arising from having their identities broadcast by defense counsel in this case. In sum, the requested modification to the Government’s proposed order sought by the defendant is contrary to precedent and the compelling privacy interests of victims. Moreover, it is without basis in fact or law, and, despite the Government’s repeated requests for clarity, the defendant and defense counsel have offered no legitimate reason for their desire to be able to publicly identify any number of victims, in the context of this criminal case and elsewhere, other than a minimal, conclusory statement, without factual examples or legal support.3 At bottom, the defendant and her counsel seek an unlimited ability to name victims and witnesses publicly, for no discernible reason, and without justification or legal basis. The victims of Ghislaine Maxwell and Jeffrey Epstein have suffered enough, and the Crime Victims’ Rights Act, applicable law, and common decency compel far more protection of their privacy interests here than the defense proposal would afford. B. The Defendant’s Demand that the Government Restrict Use of its Own Documents The defendant and her counsel also ask the Court to impose restrictions upon the Government in its use, through potential witnesses and their counsel, of documents it currently possesses, beyond the already-extensive restrictions and protections applicable to the arguments. 3 To the extent defense counsel attempts to provide such examples or arguments for the first time in a reply filing, the Government respectfully requests leave to reply to those examples or arguments. App.060 DOJ-OGR-00019519