Document 20-000330

Cases:20-000330-CrIMenDOcument 5026Filed 03/02/20Page 4 of 5 3. In February 2019, the Government, ex parte and under seal, sought modification of those civil protective orders so as to permit compliance with the criminal grand jury subpoenas; 4. In April 2019, one court ("Court-1") permitted the modification and, subsequently, another court ("Court-2") did not; 5. That as a result of the modification of the civil protective order by Court-1, the Recipient turned over to the Government certain materials that had been covered by the protective order; and 6. That the Defendant learned of this information (sealed by other courts) as a result of Rule 16 discovery in this criminal matter. With the exception of identifying the relevant judicial decision makers and specific civil matters, all of the information listed above is available in the public record, including in the letter filed on the public docket by the Government on this issue. See Dkt. No. 46. Although this Court remains in the dark as to why this information will be relevant to those courts, so that those courts can make their own determination, to the extent it would otherwise be prohibited by the protective order in this matter, the Court hereby permits the defendant to provide to the relevant courts under seal the above information, including the information identifying the relevant judicial decision makers and civil matters. In addition, the Government has indicated that "there is no impediment to counsel making sealed applications to Court-1 and Court-2, respectively, to unseal the relevant materials." Dkt. No. 46 at 3 n.5. In her reply, the Defendant asserts that she is amenable to such a solution if the Court agrees with the Government that doing so would not contravene the protective order in this case. To the extent it would otherwise be prohibited by the protective order 4 DOJ-OGR-00019443 --- PAGE BREAK --- the United States Attorney(s) in each affected district and/or the Assistant Attorney General of the Criminal Division.15 Nothing before us indicates that USAO-SDNY had been notified or had approved of Epstein's NPA with USAO-SDFL and intended to be bound by it. And the Assistant Attorney General for the Criminal Division stated in an interview with the Office of Professional Responsibility that she "played no role" in the NPA, either by reviewing or approving the agreement. The history of the Office of the United States Attorney is instructive as to the scope of their actions and duties. The Judiciary Act of 1789 created the Office of the United States Attorney, along with the office of the Attorney General. More specifically, the Judiciary Act provided for the appointment, in each district, of a "person learned in the law to act as attorney for the United States in such district, who shall be sworn or affirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district all delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned."16 The Judiciary Act thus emphasized that U.S. Attorneys would enforce the law of the United States but did not determine that the actions of one U.S. Attorney could bind other districts, let alone the entire nation. In fact, the phrase "in such district," repeated twice, implies that the scope of 15 United States Attorney's Manual § 9-27.641 (2007). 16 An Act to Establish the Judicial Courts of the United States, ch. 20, § 35, 1 Stat. 73, 92-93 (1789) (emphasis added).