EFTA00077287.pdf

etu Dirk ga 4ournal WVAILNYLLtOil % An Athol Publication THURSDAY, MAY 6, 2020 The Prince and the Proffer In recent months, the U.S. Attorney for the Southern District of New York has issued forceful public statements regarding the ap- parent failure of Britain's Prince Andrew to cooperate in an ongoing investigation of alleged sex-trafficking by the late Jeffrey Ep- stein and his associates. In this Corporate Crime article, Evan Barr examines whether these unusual actions were justified under the circumstances, and some of the challenges that lawyers for the Prince will surely confront as the investigation continues. BY EVAN T. BARR matter, recorded a televised inter- view with BBC Panorama in which n two separate occasions she reiterated claims previously 0 By in recent months, Geoffrey Evan T. incorporated in various civil I Barr Berman, U.S. Attorney litigations alleging that Epstein and for the Southern District Epstein's former girlfriend Ghislaine of New York, has issued Maxwell had sex-trafficka forceful public statements regard- to Prince Andrew on multiple ing the apparent failure of Britain's tion continues. occasions in 2001 when she was Prince Andrew to cooperate in an underage. On Nov. 16, 2019, facing The Events in New York and London ongoing investigation of alleged sex- intense pressure to explain his asso- trafficking by the late Jeffrey Epstein In an indictment unsealed in July ciation with Epstein, Prince Andrew and his associates. Berman called 2019, the U.S. Attorney's Office for gave a lengthy interview on BBC upon Prince Andrew to live up to a the Southern District of New York Newsnight. During the program, the purported undertaking to assist in charged Epstein with conspiracy Prince acknowledged a longstand- the government's inquiry by meeting to commit sex trafficking of mi- ing friendship with Maxwell, denied with federal authorities to discuss nors, in violation of Title 18, Unit- any involvement will= and his friendship and contacts with the ed States Code, §1591 and related claimed he could not "shed light" deceased financier. In making these offenses. On Aug. 10, 2019, authori- on Epstein's illicit activities. He also public remarks, Berman departed ties found Epstein dead in his jail questioned the authenticity of a from the traditional practice of avoid- cell. U.S. Attorney Berman issued snapshot showing him with- ing official comment related to ongo- a statement that day asserting that and insisted he was at a restaurant ing investigations. This article will "our investigation of the conduct with family on the night in March examine whether the U.S. Attorney's charged in the Indictment—which 2001 when =claimed they had unusual actions were justified under included a conspiracy count—re- sex. The Prince concluded by not- the circumstances, and some of the mains ongoing." On August 12, At- ing he would need to consult with challenges that lawyers for the Prince torney General William Barr also his lawyers in advance of testifying will surely confront as the investiga- vowed in a speech to "continue on under oath about his relationship against anyone who was complicit with Epstein. EVAN T. BARR is a partner at Fried Frank Harris with Epstein." The press widely criticized the Shrive,& Jacobsen and a former federalprosecu- tor in New York. He worked on a matter for Epstein In October 2019, Prince following the BBC inter- years ago while employed at another law firm. , a victim in the Epstein view for his lack of sympathy and EFTA00077287 litiolorktaflawild THURSDAY, MAY 6, 2020 unpersuasive denials. As a result, Then, on March 9, 2020, at a personnel studiously refrain from on Nov. 20, 2019, the Prince issued press conference in another mat- making any substantive comments a statement announcing that he ter, Berman stated in prepared regarding the status of an ongoing would be stepping back from his remarks that "[c]ontary to Prince investigation. In so doing, they are public duties for the foreseeable Andrew's very public offer to co- following well-established rules and future. Expressing regret for his as- operate with our investigation regulations. sociation with Epstein, the Prince into Epstein's co-conspirators, As a threshold matter, Federal noted "[o]f course, I am willing to an offer that was conveyed via Rule of Criminal Procedure 6(e)(2) help any appropriate law enforce- press release, Prince Andrew has bars the disclosure of any "matter ment agency with their investiga- now completely shut the door on occurring before the grand jury" tions, if required." voluntary cooperation." Berman by, among others, attorneys for The interview clearly touched a added that his office was "consid- the government and law enforce- nerve at the U.S. Attorney's Office. ering its options." On March 13, ment agents privy to such grand On Jan. 27, 2020, during a press con- 2020, the Telegraph reported that a jury material. The grand jury se- ference held outside Epstein's Up- spokesman for the U.S. Attorney's crecy rule is intended both to "en- per East Side mansion, Berman was Office had confirmed "[t]here have courage free and untrammeled asked about the Prince's November been communications through disclosures by persons who have 20 offer to help and stated, "[t]o date, [the Prince's] attorneys, but we information with respect to the Prince Andrew has provided zero have been informed that he is not commission of crimes" and "to cooperation." According to the New willing to submit to an interview." protect the innocent accused who York Times, Berman went on to say The article went on to say that is exonerated from the disclosure his office did not typically comment sources close to Prince Andrew of the fact that he has been un- on cooperation in an ongoing inves- had described him as "angry and der investigation." United States tigation, but he felt that it was "fair" bewildered" by the suggestion v. Procter & Gamble, 356 U.S. 677 for the public to know that Prince that he had refused to cooperate. (1958). Although Rule 6(e) does Andrew had failed to live up to his not define when a matter is one Applicable Legal Standards promise. Berman noted that the "in- and Principles "occurring before the grand jury," vestigation is moving forward" and courts have construed that phrase added that "Jeffrey Epstein couldn't Berman's remarks at these press to include, among other things, the have done what he did without the conferences stand out for many following types of information: rev- assistance of others." courthouse observers because they elations of the identify of expected On March 8, 2020, the Daily Tele- were so unusual. In late 2016, then- witnesses; information about ex- graph reported that Prince Andrew FBI Director James Comey wrote pected testimony of witnesses or had hired "an eminent team of two letters to members of Congress likely questions; and information lawyers" including an expert in (which were immediately revealed that reveals the strategy or direc- extradition matters in the United to the public) providing updates tion of a grand jury investigation. Kingdom to fend off the Ameri- on the status of the Bureau's re- See United States v. Skelos, 2 No. can investigation. The Times had view of Hilary Clinton's emails. (In 15 Cr. 317 (KMW) (S.D.N.Y. Oct. 20, previously reported that following 2018, the DOJ Inspector General, Mi- 2015). Notably, however, Rule 6(e) the BBC interview in November, chael Horowitz, issued a report that does not apply to disclosures of in- federal prosecutors and FBI criticized Comey for violating DOJ formation obtained independently agents had reached out to Prince guidelines in writing the letters.) of the grand jury process, even if Andrew's lawyers and asked to Aside from that infamous episode, the information might later be pre- interview him but got no response. however, as a general matter DOJ sented to the grand jury. EFTA00077288 liebliettgajmuind THURSDAY, MAY 6, 2020 The Department of Justice has is- questions about the existence of an British authorities are unlikely sued regulations dealing with the ongoing investigation or comment to facilitate or prioritize such release of information to the me- on its nature or progress, including demands, and while the Prince dia in criminal and civil cases. 28 such things as the issuance or serv- would retain the right to decline C.F.R. §50.2. The regulations princi- ing of a subpoena, prior to the pub- to testify under the Fifth Amend- pally prohibit DOJ personnel from lic filing of the document." U.S.A.M. ment to the United States Consti- furnishing any statement which 1-7.530(B) allows that comments tution, the impact on his already might reasonably be expected to about or confirmation of an ongo- diminished reputation would be influence the outcome of a pend- ing investigation may need to be considerable and an adverse infer- ing or future criminal trial. But made "in matters that have already ence could be drawn against him the regulations also apply "from received substantial publicity or in the related civil litigations, lead- the time a person is a subject of about which the community needs ing to a possible default judgment. a criminal investigation until any to be reassured that the appropri- If defense counsel decides to make proceeding resulting from such an ate law enforcement agency is in- the Prince available voluntarily, he investigation has been terminated vestigating the incident, or where or she will likely seek immunity or by trial or otherwise." 28 C.F.R release of information is necessary a non-prosecution agreement, as §50.2(b) (emphasis added). to protect the public interest, safe- even a Prince probably should not The regulations specifically com- ty, or welfare" but in such "unusual appear with only a "queen for a mand DOJ personnel to refrain circumstances" they are subject to day" proffer letter to protect him. from making available certain pre-approval by the U.S. Attorney (A "queen for a day" or proffer let- types of information that generally or Department Division handling ter is a written agreement between tend to create a danger of preju- the matter. a federal prosecutor and a defen- dice without serving a significant dant or prospective witness that The Prince's Precarious Position law enforcement function, includ- allows the defendant or witness ing, inter alia: (1) observations The Prince will face significant to provide information about an about a defendant's character; (2) pressure going forward to cooper- alleged crime under investigation statements, admissions confes- ate with the U.S. authorities. The while limiting, to some degree, sions, or alibis attributable to a de- U.S. Attorney's extraordinary com- the prosecutor's ability to use fendant, or the refusal or failure of ments obviously add to that pres- that information directly against the accused to make a statement; sure. Berman warned on March him or her in subsequent criminal and (3) statements concerning the 9 that the government was "con- proceedings. The letter explicitly identity, testimony, or credibility sidering its options" and he has permits the prosecutor to use the of prospective witnesses. 28 C.F.R. a number of them at his disposal. information to pursue other leads §50.2.(b)(6). In the absence of a voluntary ap- and to impeach the defendant/wit- The U.S. Attorney's Manual like- pearance, the Department of Jus- ness with his prior proffer state- wise includes a policy statement tice could invoke the mutual legal ments on cross examination.) establishing guidelines for prosecu- assistance treaty (MLAT) with the On the other hand, defense tors to comply with the above regu- United Kingdom to request Prince counsel might well conclude that lations. Of relevance here, U.S.A.M. Andrew's testimony under oath the safest approach is to hunker 1-7.530 (A) (Disclosure of Informa- in England. Lawyers for down in the U.K. First, Prince An- tion Concerning Ongoing Investiga- and the other victims also have drew's close relationships with tions) provides that "components vowed to use the process set forth both Epstein and Maxwell will pre- and personnel of the Department in the Hague Convention to serve sumably place him squarely in the of Justice shall not respond to the Prince with a subpoena. While category of subject rather than EFTA00077289 ifeloliorktaleXenned THURSDAY, MAY 6, 2020 witness. Second, although the al- discussing the fact that the Prince comment in "matters that have al- legations at issue date back to had not been cooperative. Those ready received substantial public- 2001, there is no statute of limita- statements do not disclose any ac- ity or about which the community tions for federal sex trafficking of- tions "occurring" before the grand needs to be reassured that the ap- fenses involving minors. Third, as jury (indeed, the gravamen of Ber- propriate law enforcement agency a result of his BBC interview, the man's complaint is that the Prince is investigating the incident." The Prince has "locked himself in" to a has not made himself available to U.S. Attorney could try to justify version of events (including some be a part of the investigation). his press statements under ei- highly specific alibis) that leave Second, the Department of Justice ther or both of these exceptions, him little room to adapt should press regulations found at Title 28 especially where the Prince argu- new evidence come to light. Thus, of the Code of Federal Regulations ably had injected himself into the even if he does agree to testify be- are clearly focused on trials and dialogue by appearing on a high- fore a grand jury or (more likely) protecting the rights of charged profile television program to field participating in an informal proffer defendants, which are not relevant questions. session, he risks possible perjury to this situation. However, there is Conclusion or false statement charges (not to some residual ambiguity here be- mention likely leaks to the media). cause the regulations do state that Even if the U.S. Attorney techni- Fourth, notwithstanding the fact they apply "from the time a person cally avoided violating any of the that the Prince is a member of a is a subject of a criminal investi- applicable legal standards, such royal family that enjoys close ties gation" until the end of any case, remarks are discouraged for good with the United States, he lacks and Prince Andrew might well be reason. The U.S. Attorney may any formal diplomatic or sover- a subject of the inquiry. If Prince have concluded that he needed eign immunity and is facing a pros- Andrew is presently a subject, and to apply public pressure to obtain ecutor who has already shown a a case against him is ultimately the Prince's information, and this willingness to pursue high profile filed, calling him out for having re- aggressive tactic might even bear foreign leaders such as the former fused to cooperate would appear fruit. But a lawyer properly repre- President of Venezuela. to run afoul of the regulations in- senting the Prince, or any white- sofar as they prohibit disclosure collar client for that matter, must Assessing the US. Attorneys Conduct of information about "the refusal carefully consider a number of In light of all of the surrounding or failure of the accused to make a factors before choosing to make circumstances, and the applicable statement." his or her client available for ques- rules and regulations that govern Third, the U.S. Attorney's Manu- tioning by the authorities. That extrajudicial statements by federal al clearly discourages any and all process generally will entail sen- prosecutors, did the U.S. Attorney comments like these concerning sitive and protracted discussions cross the line when he discussed the "nature or progress" of an on- between counsel over the time, his frustrations with Prince An- going investigation. That clause place and ground rules for any drew's failure to cooperate dur- plainly applies to the comments such meeting. To instill an atmo- ing the January and March press about the Prince made at the Janu- sphere of trust and fair play, such conferences? ary and March press conferences, negotiations should take place in First, even assuming arguendo especially since the implication private and not on the front page that a federal grand jury is inves- of those remarks was that such of tomorrow's paper. tigating Epstein's co-conspira- cooperation would be important ftermohichragas.. ketch Jig 4 2L n1Ond the NEW YORK LAW tors, the U.S. Attorney would not in advancing the inquiry. On the PLANAL O 3O) ADA Man LIC All alb ment4 kaki .14.6Oitav wand ratuomn a psista For ininmuckA. coma 877.257.3 02 have violated Rule 6(e) merely by other hand, the Manual does allow or rtranat‘bnixtm •N11,14I0f070-44770 EFTA00077290