We previously discussed the media objections to a move by Harvard Professor Alan Dershowtiz to bar media from part of the upcoming hearing in the Second Circuit hearing concerning the plea deal given to Jeffrey Epstein. A convicted sex offender who regularly entertained powerful men like Bill Clinton on his infamous “Lolita Express” and island estate, Epstein also secured seals to bar a review of material in the case. I previously wrote about the case and the disgraceful deal cut by now Labor Secretary Alexander Acosta which not only gave Epstein little jail time but effectively protected all of his high-powered friends. The hearing was held this week and it was reportedly heated with counsel for the victims, former federal judge Paul Cassell, openly asserting that sealed documents establish that Dershowitz (who represented Epstein and helped negotiate the deal) did have relations with the underaged girls that Epstein reportedly made available to his powerful friends. Dershowitz vehemently denies the allegations and says that three documents, if released, would show that the victims are lying.
The hearing was a direct fight between two of the nation’s best known lawyers: Cassell v. Dershowitz.
The decision of District Court judge Sweet was less compelling in my view. Sweet is 96 and an appointed of Jimmy Carter. Sweet seemed to dismiss the public interest in the case and the relevance of these documents for both the victims and the public.
The resulting spirited argument took place on Wednesday where the victims and media are seeking the unsealing of material in the case. Cassell did not reportedly hedge in his allegations against Dershowitz or Epstein friend Ghislaine Maxwell. He told the three-judge panel that the “broad unsealing” that he was seeking would “demonstrate Epstein and Maxwell sexually trafficked her to Epstein’s friends, including Alan Dershowitz.”
Courtroom representations are privileged for purposes of defamation. Thus, Cassell’s allegations cannot be used as the basis for a defamation lawsuit unless repeated in public.
There are ample arguments favoring general disclosure given the public outrage over the deal by Acosta, who seemed to thrive after cutting the absurd agreement with Dershowitz – an agreement recently declared as illegal by a federal court. I have previously written that Acosta should resign, though I oppose efforts to impeach him on constitutional grounds.
Epstein may have developed the perfect plan for a sex offender by implicating a long list of powerful men in his unlawful activities. Acosta then played the perfect dupe in shielding those men and Epstein in a deal that not only violated federal law but violated the obligations of the Justice Department to both the public and the victims.
For Dershowitz, the hearing must have been discomforting, particularly when Judge Rosemary Poolerspecifically asked Cassell “Are you saying Mr. Dershowitz [came up] in other documents.” Cassell responded “Absolutely, absolutely.” Dershowitz’s counsel, Andrew Celli, is only trying to release three specific documents and not the broad array sought by Cassell.
For their part, Epstein defense counsel, including former Independent Counsel Ken Starr, insist that the deal reflect the weaknesses in the case and that “The number of young women involved in the investigation has been vastly exaggerated, there was no ‘international sex-trafficking operation’ and there was never evidence that Mr. Epstein ‘hosted sex parties’ at his home.” Their strongest argument is that, whatever the public view of the deal, Epstein was given the deal, served his short sentence, and “is entitled to finality like every other defendant.”
It sounds like the panel was leaning toward a broader disclosure which could prove embarrassing for a long list of Epstein friends. Clinton’s trips have drawn considerable attention, particularly when it was reported that he told the Secret Service not to come on the “Lolita Express” flights, which often had these underaged girls in attendance.
The panel is composed of Jose Cabranes, Rosemary Pooler, and Christopher Droney. Cabranes and Poller were appointed by President Bill Clinton. Droney was appointed by President Barack Obama.