Steve Palmer [00:00:00]:

All right, Steve Palmer, Lawyer Talk podcast Q and A. That means question and answer. If you've got a question and you want an answer, go to lawyerertalkpodcast.com and there's a little portal there. You can send us a question and I'll try to answer it right here on the air or you can just check us out in the socials. Leave me a comment. We'll try to get to it. Today's question is from Lucy. Can you explain please, what's going on with Ghislaine, Ghislaine Gizlan, whatever her name is, Maxwell, this is the Epstein gal.

Steve Palmer [00:00:24]:

It seems like if she had anything to say, she would have already said it. And why would she decide to talk now? The whole thing seems a little bit suspicious. Well, in the whole Epstein thing seems a little bit suspicious, but I'm not going to go into that. I don't know if he killed himself, he didn't kill himself. If they let him kill himself, whatever. I mean, I've got my thoughts, but it doesn't matter here. I'm going to talk about sort of the big picture procedure. It's almost a breakdown.

Steve Palmer [00:00:48]:

So I think this is an interesting jump off point to cover a few things. First of all, Maxwell had pled at a plea deal and I believe she's serving a 20 year sentence on a federal plea deal. And what she, there's an unrelated appeal going on here for her and she is arguing that the non prosecution agreement that the government inked with Epstein back in 2007 should apply to her and therefore she shouldn't have been prosecuted at all. So that's sort of like underpinning all this. And it'll matter, I think, a little bit and I'll explain why in a second. But what's really going on is now it looks like she is being subpoenaed to come back to a House committee that's investigating the Epstein thing. And look, this has gotten, this has gotten all sorts of news for all sorts of reasons. And I think what the Trump administration is trying to do is sort of air all this out.

Steve Palmer [00:01:45]:

I guess what I would be doing is I would be saying, look, release everything you can. I think I talked about grand jury transcripts on this in another episode. But you know, release everything you can. Let's air this out. Let's put some sunshine on it. And this is part of that. But the question here is like, all right, so what is Maxwell really going to add to it? You know, can she, can she really provide any information now? And why would she? And why didn't she. Here's what, here's how this breaks down.

Steve Palmer [00:02:12]:

In lots of cases, if I represent somebody who's being prosecuted by the federal government, very often if my client is dead to rights, the government will offer me a deal. They're going to say, hey, Steve, I know you represent Jane Doe over here, and we've got a prosecution against some other people. We're curious what Jane Doe has to say. Can she come in and talk to us? And maybe, just maybe, if her information is helpful to us or provides some substantial assistance to us, we'll give her a deal, we'll give her a break. And in the federal system, it typically works like this. You get a letter. Some people call it a queen for a day letter, some people call it a proffer letter. But basically the letter is an agreement by the government, by a United States attorney's office that says, or the Department of Justice that says, all right, Ms.

Steve Palmer [00:02:58]:

Doe, we hereby, we hereby agree not to prosecute you or not to. I already screwed it up. We hereby agree not to use the things that you tell us in this interview against you in order to prosecute you. In other words, the statements you make are going to be protected. Now, why does that matter? Because you have this chicken or an egg problem. Let's say you're. You want to provide information to help yourself. And you say, all right, government, I want to help myself.

Steve Palmer [00:03:26]:

I want to provide information and curry a deal with you. Because I wasn't the baddest of the guys. I was just one of the guys. And, you know, I want to be a snitch. So say what you want about snitches, but this is how a lot of the system works. Well, the government says, well, what do you know? And Mr. Doe says, I don't want to tell you because if I tell you, then I'm incriminating myself. And the government says, well, we can't tell you what we're going to do if you don't tell us what you know.

Steve Palmer [00:03:53]:

So you end up in this impasse and that has created this queen for a day concept or proffer letter concept, where the government says, all right, what we're going to do is we're going to create a bank. We're going to create like this, this escrow account for information, and you're going to tell us what you know, and we're going to put that information in an escrow account. And in theory, we're not going to use it against you. So Your statements themselves we're not going to use to prosecute you. So you can safely at least tell us what you know and then based on that we can negotiate what kind of deal, if any, we're willing to give you based on your assistance, based on the information you know. And sometimes this is like the first step into an agreement to testify against a co defendant or others in a case. Now there's a couple gotchas in this. First of all, this is not an immunity agreement.

Steve Palmer [00:04:40]:

These queen for a day letters or proffer letters aren't immunity agreements. It's not like the government's agreeing not to prosecute Mr. Doe. That hardly ever happens. It's, it's an agreement not to use the information. And the second little gotcha is that the government almost always has a provision in these letters or these agreements that says we can make derivative use of this information. So if you tell us something, we're allowed to go investigate based on what you told us. And if we can find out that same information, that same fact from a different source, we can use it even if you told us about it first.

Steve Palmer [00:05:15]:

So these are not bulletproof letters, but they do give you a lot of protection if you want to share information and cut a deal. Otherwise this system would bog down to nothing. There would never be any deals for the impasse that we talked about. I want to tell you what's up, but I don't want to incriminate myself. The government can't tell you what they're going to do because they need to know what you know. This is a way through that impasse. Now why am I bringing this up? Because I remember when Maxwell was getting prosecuted initially I was thinking, I wonder if they got her up. I wonder if she's proffering, I wonder if they heard lawyers are actually bringing her in and providing information to the government.

Steve Palmer [00:05:45]:

And I don't know the extent to which that happened. It may have happened and there might be 302s or government reports based on what Maxwell said during some of these proffers. So she could have come in and been provided all sorts of information. I think this is sort of like what everybody wants to know. Is there, is there a cache of information here that the government knows about that they're not sharing? Is there a list? Is there? What did Maxwell know and when did she know it? You know, this is like people want to know this, but let's say she didn't. Let's say the, there was no agreement, there was no agreement to testify. The government Said, look, we don't care what you have to say, Maxwell, you were involved in this horrible scam and this horrible scheme rather to traffic in underage. The underage sex trade and the abuse of these children is so horrible, we're not going to offer you anything.

Steve Palmer [00:06:33]:

In fact, 20 years is generous. Take it or leave it. And that could have happened. So let's say it went that direction. Let's say it went that direction. But now, because of the hue and cry, because everybody is saying, we want to know, we want to know, darn it, we want to know. Is there a way to get Maxwell back to the table? Well, it turns out there is. I mean, now, a congressional subpoena is probably not the right road to get that done, because that's more of a.

Steve Palmer [00:07:00]:

I don't know, I don't want to call that a show hearing. But, you know, if. If I'm representing Maxwell and she gets. And I, my client, Maxwell has a subpoena to go testify in Congress, the first thing I'm going to do is say, look, we've got an appeal pending. This is back where that's relevant. We've got this appeal pending. My client still has a Fifth Amendment right to remain silent. Why would she say anything here unless you're giving her either full immunity, but you've already prosecuted her.

Steve Palmer [00:07:27]:

So, look, give me a reason to have her talk and we'll talk. And that goes back to this proffer concept. So maybe now they could give her an agreement and say, tell us what you know and will agree not to use it against you. And then you would ask. And I think what the question is asking is, how does that play out? Well, in federal court, there's something called Rule 35. And so before a trial, before a case is resolved, if you provide information and you cut a deal with the government, the government will come in and they will file a request. And this is under the US sentencing guidelines. It's called a 5k or a 5k one motion which says, all right, this defendant has provided substantial assistance.

Steve Palmer [00:08:08]:

We're going to request you, Judge, to give this defendant a break. In other words, lessen the sentence. Sometimes in various jurisdictions, there are formulas. We want to less it by x percent. Sometimes it's more specific. It just all depends. But the idea is this is how you get favor for providing information or cooperation. And the standard is generally substantial assistance to the government.

Steve Palmer [00:08:29]:

Sometimes it's obvious it's substantial assistance, sometimes it's not so obvious, but that is what would have happened beforehand. Now, let's say that didn't happen and now they want to happen. So we're looking at. There's another rule that lets you sort of do this after the fact. It's Rule 35 and it basically says this in general. Upon the government's motion made within one year of sentencing, the court may reduce the sentence if the defendant after sentencing provided substantial assistance investigating or prosecuting another person. If it's later, upon government motion made more than one year after sentencing, the court may reduce the sentence if the defendant's substantial assistance involved information not known to the defendant until a year more after information provided to the defendant to the government within a year of sentencing but did not come. So there's, there's some other exceptions.

Steve Palmer [00:09:14]:

So there might be some gotchas if it's more than a year. And I think it has been for her, but that would be the, the hook trying to get some sort of deal. And look, the government always, I say always, but the government holds the key to the jail. The if the DOJ wants to do something for Maxwell, they can probably find a wedge or a way to do it if she's now providing information. The other headline here I saw recently is could Trump pardon Maxwell? I think he probably could if it's a federal case. Now, Woody, I doubt it. But, you know, that's, that's sort of what's going on. So some of this, I think if, if we really wanted to get to the heart of it, the government would need to go to Maxwell and say, look, we're willing to cut you a deal if you provide information now that that gives us substantial assistance and we'll find a way to make it work under Rule 35 or some other way or, I mean, it seems like that is what would be going on instead of a public hearing in Congress where Maxwell will probably in theatrical form say, I'm going to take the Fifth, because why wouldn't she? I mean, you know, any information she provides is certainly going to be incriminating.

Steve Palmer [00:10:24]:

And if she still got an appeal pending, they could still use it against her. So I, you know, she's sort of in a, in a weird spot, you know, are we ever going to get to the bottom of it? I don't know. I tend to doubt it. But Maxwell seems like an obvious source. And I suppose the one last thing we should talk about is this. The question becomes, is Maxwell really a reliable source at this point? You do the math on that one. She's serving a 20 year sentence. She was engaged in what, by all standards is reprehensible behavior.

Steve Palmer [00:11:00]:

Trafficking, sex trafficking kids. I mean, this is the worst of the worst. Would Maxwell, you should ask say anything to get out of jail? Probably. You know, she's, I don't know how old she is, but 20 years is a long time. In fact, it may not be enough if you really want to do the calculus on the, on the conduct. But anyway, is she really going to tell the truth even if offered a deal? I don't know. The government would have to evaluate that. And by the way, that is something that is usually baked into the cake of these sort of information agreements.

Steve Palmer [00:11:31]:

It has to be truthful information. And sometimes it's so patently obviously false that it's not true that the government says, look, we don't believe you. So Nana, Nana. Other times it's not so obvious. And we get into this back and forth about whether it's truthful or whether it's not. Usually there's ways to verify stuff. So once information is provided, the investigators go to work and they try to corroborate things with their own independent investigation. So look, I hope this answers the question.

Steve Palmer [00:11:58]:

It's a great question. I, as people probably know now I try to avoid the hotel topic, political things, except when it's a great jumping off point to talk about this other stuff behind the scenes that most people the news that is generally doesn't talk about. So you got a question, you got a breakdown, you want shoot it to me at lawyer talk lawyerTalkPodcast.com or in the socials, off the record, on the air till now.