Perhaps Less Than Meets the Eye

I hesitate in commenting upon the Jeffrey Epstein matter. After all, the motto of the RBC is that “Everyone is entitled to his own opinion, but not his own facts.” Somehow, the feel of this story is more National Enquirer than, say, the sort of measured and sober analysis which this blog attempts to traffic in. However, the indictment and arrest of Epstein today, coupled with Wednesday’s decision of the United States Court of Appeals for the Second Circuit unsealing vast amounts of material filed in a defamation suit in New York, take this matter outside of the seamy margins of “journalism” practiced by the likes of the Enquirer.

While I haven’t checked, I have to assume that these two coincident developments are “trending” on FaceBook and Twitter. There is, simply put, a tsunami of what might best be described as prurient speculation as to the identities of the famous and near-famous who might be implicated in Epstein’s alleged one-man sex-trafficking ring. However, let me point out the following:

I think that the caveat set forth by the Second Circuit in its opinion deserves more attention than it is likely to receive:

[T]he  media  does  the  public  a  profound disservice when it reports on parties’ allegations uncritically. We have previously  observed  that  courts  cannot  possibly  “discredit  every statement or document turned up in the course of litigation,” and we have criticized “the use by the media of the somewhat misleading term ‘court  records’  in  referring  to  such items.”  Even  ordinarily  critical readers  may  take  the  reference  to  “court  papers”  as  some  sort  of marker of reliability.  This would be a mistake.


We  therefore  urge  the  media  to  exercise  restraint  in  covering potentially defamatory allegations, and we caution the public to read such accounts with discernment. 

Slip op. at 23-24, footnote omitted.

The one thing that we know is that the public will not read “such accounts” with discernment. And, this lack of discernment is certainly stoked by the current resident of the White House who, for instance, claims that he was the victim of some vast electoral conspiracy. However, I have done my job by striking this cautionary note.

Update: I have uploaded a copy of the Epstein indictment here.

6 thoughts on “Perhaps Less Than Meets the Eye”

  1. As they say, It would be irresponsible not to speculate, esp. when the topic under consideration has a sexual angle.

  2. Layperson question here: How does the concept of “double jeopardy” relate to these charges?

    Does this indictment allege some new element to the crime? Does it identify new victims? Does the government get a second bite at this apple simply because the original plea/non-prosecution agreement was improperly granted?

    1. Obviously, the defense will argue something along the lines of either double jeopardy or some other sort of estoppel. However, my understanding of the new indictment is that it involves different crimes (different victims, different events, etc.) than were covered by the initial plea deal. In a few moments, I will update the posting with a link to the new indictment.

  3. Trump’s comments on Epstein were way back when he was cultivating an image as a foxy billionaire TV star with a sideline in politics. He would probably be less forthcoming today.

    The DOJ are keeping the deal sealed, in spite of a court judgement that it infringed victims’ Constitutional rights, for a reason – surely not to protect Bill Clinton’s reputation.

    “Let justice be done, though the heavens may fall” ?

  4. Anyone got any idea why Trump’s hand-picked SDNY US Atty is going after Epstein?

    I can only think of two possibilities. One is that he’s pretty sure the political fallout will do more harm to Democrats than Republicans. The other is that Trump’s perversion of the DOJ isn’t yet complete, and there remain some USAs who are willing and able to pursue prosecutions that inconvenience his nibs.

    From here in the cheap seats, I’ve no idea which is the more likely, nor do I have much confidence that these are the only possibilities.

    1. To be clear: I know nothing about Berman other than that Trump interviewed him and selected him. This is evidence that points toward bad character and a lack of professionalism, but doesn’t outright prove it. As far as I know, it’s possible he’s an upright public servant. It’s just not how I’d bet.

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