What we learned from newly released Epstein emails

Trump might have done nothing wrong, but granting clemency to Ghislaine Maxwell could make it seem she is hiding something for him.

Victims of Jeffrey Epstein spoke at a Sept. 4 news conference at the U.S. Capitol. (C-SPAN)

The newly released emails of convicted sex offender and charged sex trafficker Jeffrey Epstein should be a huge inflection point, and here’s why.

The emails were released Wednesday by Democrats on the House Oversight Committee, who obtained them via subpoena of Epstein’s estate earlier this year. I’ll focus on two that reference President Donald Trump. One from 2011 is between Epstein and Ghislaine Maxwell, the convicted child predator and sex trafficker. In this one, Epstein emailed Maxwell: “i want you to realize that that dog that hasn’t barked is trump.. (Victim’s name redacted) spent hours at my house with him ,, he has never once been mentioned. police chief. etc. im 75 % there.” Maxwell responded: “I have been thinking about that…”. In another, Epstein asserted Trump “knew about the girls.” House Republicans and the White House have now identified the victim as Virginia Giuffre. They did so because, according to them, Giuffre did not accuse Trump of wrongdoing in her memoir, released after she tragically died by suicide (and was repeatedly smeared and called a liar by Trump and his allies). OK—but that misses the point and the significance of these emails and what we should all be focused on.

Until now, we surmised that Trump knew about Epstein having sex with young girls based on numerous inferences, including Trump’s own admission that he kicked Epstein out of Mar-a-Lago because he was poaching “spa” workers, including Giuffre, and hitting on female employees. Trump painted all of this as a revelation in which he learned about this and immediately severed ties with Epstein. But that is entirely different from the news here that, at least according to Epstein, Trump spent significant time in Epstein’s house with Giuffre and (it appears) Epstein. If true, that is a whole other level of involvement and knowledge.

These email statements between Epstein and Maxwell are, in a prosecutor’s world, what we would call “co-conspirator’s statements” in furtherance of a conspiracy, under Federal Rule of Evidence 801(d)(2)(E). States have similar ones. Here, the conspiracy between Epstein and Maxwell is not necessarily to commit sex trafficking but, rather, to cover it up. Why is that important? Because the whole basis of this rule—that statements between co-conspirators are admissible—exists because our judicial system and criminal laws recognize the reliability of such statements, i.e., the likelihood that co-conspirators in a crime are going to talk honestly with each other about other people’s involvement. Here, when they knew no one else was listening/reading, when they had no reason to suspect these would ever become public, Epstein and Maxwell talked about Trump being present in his house with a known sex trafficking victim, Giuffre; they stated “of course he knew” about the “girls.” And the label Epstein gave to Trump “the dog that hasn’t barked”—i.e. he hasn’t cooperated in the Florida federal case in which Epstein was given a slap on the wrist—is very telling. What would Trump have to “bark” about if it weren’t helpful to an investigation (the email mentions a police chief, so we know he is talking about a criminal investigation, though the exact context is unclear)?

The White House and Republicans are right to a certain extent—none of this alone means that Trump sexually assaulted underage girls. But it certainly means there was —and is—an avenue ripe for investigation about who knew what when and who helped cover it up, including Trump. But, here is the problem: Who would, under any normal circumstance, be responsible, even eager, to investigate that thread? The Department of Justice. But in this era, not only isn’t that happening, but Trump’s DOJ and his former personal defense attorney are actively involved in covering it up.

Remember Deputy Attorney General Todd Blanche’s sham proffer by of Maxwell a few months ago? Well, we know, because we have the recording, that Blanche did not ask Maxwell about these emails, (which presumably he must have known about). We know that he did not press her at all but allowed her to simply deny and deflect. Now it is much clearer why. According to the emails released, Maxwell knew about Trump spending time at Epstein’s house—at a minimum. What else did she know? Why were her statements about Trump so carefully crafted? And it is also more clear why Maxwell was rewarded after this interview – she was transferred, in violation of Bureau of Prisons regulations, to a minimum-security prison, where she enjoys a much cushier lifestyle—she did not talk about Trump’s presence or knowledge. She wasn’t asked, and she didn’t offer.

And here is the really insidious part: We now have confirmation that she is preparing an application to Trump for a commutation. The constant stream of President Donald Trump’s pardons this term is overwhelming but the pattern is crystal clear. He is proceeding at an unprecedented pace and with no process whatsoever (yes, there is a process laid out in the Department of Justice Manual). And his pardons and commutations—which are supposed to be grants of mercy and justice—are all uniquely tied to him. Taken together, they send a dangerous and unique message: Help me—either through financial enrichment, protection, political support, carrying out orders to do illegal or close-to-the-line schemes–and you will be rewarded. In his most recent announcement pardoning over 70 people for their participation in the fake elector scheme to overturn the 2020 election with false claims, he called those pardoned “victims of political persecution” who were “targeted for defending the Constitution.” None of the people pardoned have actually been charged, let alone convicted, of federal crimes, and he has no power under the Constitution to pardon them for state crimes. So, in essence, he is wiping the slate clean in case any future Department of Justice should think to charge them with federal crimes such as perjury for example.

Back to Epstein and Maxwell. It is now more likely than ever that Trump will give Maxwell some kind of commutation for her continued silence and cooperation with his team. Everyone who opposes sex trafficking, abuse of minors, and corruption of the justice system should loudly oppose this and should demand that DOJ do real interviews of Maxwell and others or appoint a special counsel to do so if it can’t carry out its own duties. And, we should say out loud that, given Trump’s pattern of openly granting clemency when it benefits him, any commutation for Maxwell would make it even more likely that she is hiding something for him. That is a risk not even Donald Trump should want to take.

Mimi Rocah was the Westchester County District Attorney and a former federal prosecutor and Division Chief in the Southern District of New York.

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