But is that the end of the game? What about his lawyers, both criminal defense and otherwise? And so the speculation continues. While many criminal lawyers actually don’t ask their clients the facts, at least at the outset of a representation — a subject for another day – suppose, purely hypothetically, that Epstein “told them all.” Suppose Epstein, again hypothetically, had a series of confederates (or call them, “recruiters”) who recruited girls for Epstein’s sexual pleasures, and Epstein after, or even before, he was indicted, gave his lawyers all the gory details in order for them to help defend him. And let’s go for broke; Epstein told his defense lawyers where he buried in his garden a list of the underage girls and who recruited them for him, and handwritten signoffs from the recruiters. Crazier things have happened. Seems, assuming these hypothetical facts, these lawyers would represent a landmine for the prosecutors.
So, why aren’t the prosecutors — who have promised, despite Epstein’s death, to pursue the investigation wherever the leads may take them — knocking at the Epstein lawyers’ doors armed with grand jury subpoenas directing them to show up at the grand jury pronto? After all, Epstein is dead and they can’t incriminate him anymore, even if of a mind to. What could possibly prevent prosecutors from doing so?
Simple. If it wasn’t clear before that, the Supreme Court of the United States in Swidler & Berlin v. United States, 524 U.S. 399 (1998), during Ken Starr’s investigation of President Clinton, held that Starr absolutely couldn’t subpoena the interview notes prepared by William Hamilton, the personal lawyer for Deputy White House Counsel Vince Foster. Those notes remained privileged and confidential even after Foster, who killed himself, was dead and buried. Meaning, Hamilton was obliged, consistent with the attorney-client privilege, to take the secrets Foster confided to him to Hamilton’s grave. No matter what! As the Court exquisitely explained the policy dynamic in play, “Knowing that communications will remain confidential even after death serves a weighty interest in encouraging a client to communicate fully and frankly with counsel; posthumous disclosure of such communications may be as feared as disclosure during the client’s lifetime.”
Now, despite the Supreme Court’s view, it doesn’t necessarily sound right across the board, does it? How will Epstein be hurt if these lawyers are allowed to spill what they know? There’s a serious scandal brewing here, even if there is just one isolated perpetrator out there connected to Epstein’s alleged horrendous conduct (and there are allegedly more). And there’s a scandal even if the largely idle speculation about Clinton, Trump, Dershowitz, Prince Andrew, Ghislaine Maxwell et al is utterly false (although, from the reportage, Maxwell certainly seems to be behind the eight ball). But assume that none have any blood on his or her hands. And, further assume, Epstein credibly explained to his lawyers that they’re all innocent — and somehow unequivocally described to these lawyers why they’re innocent. Shouldn’t the lawyers be free to disclose that?
Maybe so in an ideal world, but the law is as clear as possible. The privilege protects the information confidentially disclosed — as long as no non-lawyer (or legal assistant) was present during the telling. Yes, Epstein could have written a will or declaration that he gave to his lawyers stating that, upon his death, these lawyers were free to disclose what they had learned from him in confidence. Or, although not ideally, he could have authorized them orally. One suspects, though, that didn’t happen, and short of that the prosecutors would be out of luck.
Yes, there is a limited exception to this hardline scenario. Assume this: although he didn’t authorize his lawyers to disclose his confidences post-mortem, Epstein gave his lawyers totally exonerating information, even an alibi, about one of those accused who is prosecuted, convicted and now has begun truly “hard time” — theoretically therefore, “imminent danger.” The ethics rules are not totally clear – but a lawyer faced with this predicament might be willing to place his law license in jeopardy to help exonerate an innocent individual.
Right now, though, looking at it from the cheap seats, it is likely that the prosecutors, however well intentioned, are simply out of luck if they expect the lawyers to provide proof of guilt. And it is unlikely that anyone will be exonerated by a sympathetic Epstein defense lawyer positioned to say “Epstein told me that X is innocent for the following reasons.” X will have to prove his or her innocence on their own!
For completeness sake, it may be different in the instance of Epstein’s transactional lawyers. If Epstein engaged in financial fraud, as the press suggests, prosecutors won’t have to rely exclusively on communications between Epstein and his transactional lawyers. Grand jury subpoenas will abound calling for non-privileged documents such bank and financial records, transmittals of documents containing incriminating connotations and communications to third parties (the latter which are no protected at all). Beyond that, though, if, hypothetically, prosecutors can show that Epstein communicated with his lawyers in order to commit future crimes, even if the lawyers didn’t know that Epstein’s purpose was to commit future crimes, such as money laundering, etc., those lawyers would likely be forced by court order to testify – thereby letting the chips fall where they may.
Count on it. The prosecutors will be all over that!
This is an opinion piece. The views expressed in this article are those of just the author.