2 right about that same time, he quite quickly

Page 300 1 A Yeah. 2 right about that same time, he quite quickly 3 identified a potential problem, and that was the commitment 4 for the -- or, the agreement that the U.S. Attorney's Office 5 would identify the representative for the victims. Do you 6 recall him raising that? 7 A I don't recall him raising that as an issue, but I know it was an issue. Q All right. /t was an issue, and it was one that he 10 raised as soon as he came back. So, there was an effort, 11 which he conducted then in Ma absence to craft 12 an NPA addendum to address that issue. 13 Do you -- are you -- are you aware that MI received a copy of the NPA in November when Ken Starr wrote a letter to asking her to review the 22.55 portion of it? Do you -- do you remember that issue? A I remember that the issue was appealed to CEOS. Q Okay. Well, it was -- it was appealed initially by 19 letter to , raising an issue that was new to -- 20 that had not been raised with you, and that is what led to 21 your letter to Ken Starr on December 4. 22 A I will accept the timeline. Q Okay. 24 A It's difficult without all the documents -- Q Sure. EFTA00009116 Page 301 1 2 A -- but yes. Q And at the time theta/MEM saw the NPA, 3 he sent a message to MO about the -- about his view 4 of the NPA, and you didn't see it, but I just wanted to name 5 some problems that he identified with the disposition, and 6 get your reaction -- 7 A Mm-hmm. 8 Q -- to it. So, first, he says I'm not thrilled 9 about the agreement, but he acknowledges that's out of his 10 hands. He says in terms of the charging and sentencing 11 provisions, he's getting -- Epstein is getting a much better 12 deal than the average defendant, with the exception of 13 defendants who have done physical harm to their victims or 14 abused very young children, we haven't seen more egregious 15 conduct, because of its serial nature. The area we need to 16 be most careful about relates to the victims. 17 The U.S. should seek to ensure that the plea, which 18 is not giving him serious jail time, provides the best means 19 possible to address the harm he caused to the victims. That 20 generally means restitution and/or therapy. While the 21 agreement provides facility for the victims, the relevant 22 terms still seem pretty advantageous for the defendant, and 23 not all that helpful to the victims. 24 They get an attorney who will be paid by the 25 defendant, which involves at least some conflict of interest, EFTA00009117 Page 302 1 or they could hire their own attorneys on a contingency 2 basis, and they get waivers from the defendant when his plea 3 would facilitate their civil cases in any event. Then, they 4 still have to sue him to get anything. Most times with wealthy defendants, we make them 6 agree to a restitution fund, and then still provide that the 7 victims can sue the defendant independently if they choose. We always make them clearly admit their guilt, no nolo pleas. 9 This is incredibly important to the victims. I 10 would have taken the guy to trial unless the victims were 11 clearly against it, and I don't think most of them are here. 12 He then says to , who by this time is working 13 for -- 14 A Mm-hmm. 15 16 A Right. 17 Q So, that's the context in which he's addressing it. 18 specifies that, ' wouldn't and 19 shouldn't address the agreement." So, that -- so that the 20 issue that was then before put there by Ken 21 Starr, was the -- whether this 22.55 scheme or scenario set 22 out in the NPA was appropriate. It appears that she then 23 sent that back to you to address. 24 A Right. 25 Q But as far as commentary on the NPA, EFTA00009118 Pagel 303 if you had been aware of this perspective at the time you were -- that you and your people were fashioning the NPA, would that have been helpful to you in -- in deciding out to proceed? A So, may I? Q Yes. A Okay. I assume you've read the whole thing, but 8 let me just take a 9 Q I have. 10 A And so, a few comments. First, let me say, he was 11 part of the September meeting. 12 Q Me-hmm. 13 A And -- and to my recollection, these 14 perspectives -- so, so, at least the outlines of the 15 agreement were -- were disclosed at that meeting, and I don't 16 recall this type of communication at that time. 17 Q Okay. 18 A I also recall that there was a lot of back and 19 forth around this restitution fund concept, and our 20 perspective was that the restitution fund puts the victim at 21 a disadvantage -- 22 Q Me-hmm. 23 A -- because -- let me -- let me try to recreate. I 24 don't recall the details, but I recall that there was a 25 perspective that the restitution fund -- EFTA00009119 Page 304 Q MO-hmm. -- put the victims as a disadvantage -- 4 Mm-hmm. A -- and there is some reference to -- Q It's the -- A Was it an Alaska case? Q It's called the case. 5 MR. THE WITNESS I'm sorry? IC MR. 11 THE WITNESS NM 12 MS. or 13 THE WITNESS a=? 14 BY MS. 15 Q Yeah. 16 A And so to the extent that there were better ways of 17 crafting this, that certainly would have been -- been highly 18 relevant, because to my recollection, we were not wed to any 19 particular way of crafting it. 20 The -- the intent of the 22.55 was to come as close 21 as possible to putting the victims in the -- in the position 22 they would have been had he been tried and convicted 23 federally. And so, the answer to your question is yes. 24 Q Is yes, that would have -- 25 A Would have been helpful. EFTA00009120 Page 305 1 Q Okay. As you set about addressing the 22.55, you 2 consulted with . Do you recall that? 3 A I -- I recall consultations. I don't recall that 4 it was specifically with a but -- 5 Q Did you know her? 6 A Yes. 7 Q Okay, and do you recall the nature of your 8 interaction with her? 9 A I -- I don't. I know from contemporary review of 10 the record, that there is an e-mail from her. Q It's 41a. A 41a. Q And what I -- what I want to ask is, is simply, 41a is -- is an e-mail in which you ask -- you note to 15 , who was 16 A Right. Q -- one of her deputies, and she oversaw CEOS. She, 18 , mentioned to you that was looking at 19 this, which is the -- A 22.55. 21 Q -- 22.55, she contacts her counterpart in the civil 22 division, and there's an e-mail from him, 23 which is the second page of this exhibit, which he copies you 24 on. So, my question is, is this the extent of your 25 interaction with on this issue? EFTA00009121 Page 306 1 A I -- 12 years -- 2 Q Okay. 3 A -- after the fact, I don't remember. 4 Q Okay. All right. The -- in Exhibit 35, there is a 5 letter from Jay Lefkowitz in which -- I'm sorry, it's an e- 6 mail from Jay Lefkowitz. 7 A Exhibit? 8 Q Exhibit 35 to you, and this is substantially later, 9 but it has a sentence that -- or a phrase that we'd like to 10 ask you about, and -- all right, it's highlighted at the top. 11 It says, back in the beginning of -- back at the beginning of 12 January, when we both agreed that there were significant 13 irregularities with the deferred prosecution agreement, you 14 called a time out. Is that accurate? Did you and he agree 15 that -- 16 A No. 17 Q -- there were significant irregularities? 18 A No. 19 Q Okay. 20 A And if I could, there are -- there are several 21 instances where not just, to me, but to other people as well, 22 Jay recharacterizes conversations. 23 Q Recharactorizes them inaccurately? 24 A Inaccurately. 25 Q Or misleadingly? EFTA00009122 Page 307 1 A Or misleadingly. 2 Q All right. 3 A What I recall agreeing to at some point is there 4 was an appeal to the DAG, or there was an appeal in place, 5 and I basically said -- I think there was a letter that I 6 sent, saying if you want to appeal, go ahead. We're not 7 concerned about this. 8 Q MM-hmm. 9 A But that doesn't mean that I agree that there were 10 irregularities -- 11 Q All right. 12 A -- or that there was a time out, that's -- I'm part 13 of a department. I'm part of a hierarchy. If someone wants 14 to overrule me, that's okay by me. 15 Q All right. So, the NPA addendum was worked out, 16 and the defense team continued its sort of multi -pronged 17 assault. In the middle of the negotiations between 18 and Lefkowitz about the NPA addendum, that's when you had the 19 much commented on breakfast -- 20 A Correct. 21 Q -- on October 12, and you have stated publicly that 22 at -- perfectly accurately that the NPA was signed, and that 23 was a done deal. And so, that -- that this was not tied in 24 any way to any effort to influence the terms of the NPA, 25 fair? EFTA00009123 Page 308 1 A Fair, because the way this was reported was that I 2 negotiated it over breakfast. It was signed, and that's 3 really important. 4 Q Of course. There were, however, a number of open S issues -- 6 A Yes. 7 Q -- right? And in Exhibit 28, Jay Lefkowitz on page 8 two, this is an e-mail to you, acknowledges your -- your 9 breakfast on Friday. This is dated October 18, and -- and 10 following -- following up on -- your conversation with him 11 about the date for Epstein's plea. 12 So, he notes that, "You said you didn't want to 13 dictate a schedule to the state." So, all I want to note is 14 that when you had the breakfast, there was there was 15 there were issues still open that were the subject of 16 discussions between the defense and the U.S. Attorney's 17 Office. 18 And -- and so, I guess my question is, while that 19 was a meeting of convenience in a public place, in a location 20 where you had business later that day, a speech, I believe, 21 optically, do you understand the public concern that this was 22 sort of a one on one negotiation on pending issues? 23 A So, I -- I understand how there can be concern. 24 This, you know, it is -- it was not unusual -- in this case, 25 I actually very intentionally waited, and tried not to have EFTA00009124 Page 309 1 one on one meetings, but there are other instances where : 2 might from time to time have one on one conversations with 3 the opposing counsel. 4 I don't remember the breakfast. I can speculate 5 that one of the issues that was informing this was somewhere 6 around this time, and I can't say with certainty that this 7 was what it was, but somewhere around this time, there arose 8 allegations that had directed the designation to her 9 boyfriend's partner, or something along those lines. 10 Q A former -- I believe it was a former law school 11 classmate of her former -- of her then boyfriend. 12 A 1 don't -- yeah, and so I don't remember what the 13 details -- 14 Q Okay. 15 A -- were, but I know that that was a topic that he 16 wanted to raise -- 17 Q 18 A -- with me. 19 Q Did he at that breakfast? 20 A I honestly -- I don't recall the breakfast. 21 Q Okay. 22 A You asked me about one characterization of what I 23 said in the record, you know, of that breakfast. I think I 24 responded -- 25 Q Mm-hmm. EFTA00009125 Page 310 1 A through, or my counsel responded, and they're 2 pointing out that I seem fairly perturbed at how he 3 inaccurately characterized something that I said. And so, we 4 don't need to revisit that, but -- 5 Q Uh-uh. All right. If you look at Exhibit 27, 6 another sort of point, just to kind of -- 7 A All right. 8 MR. : Could we -- before we -- 9 MS. : Yes? 10 MR. : -- leave -- are we leaving the 11 breakfast meeting? 12 MS. : No. This is -- 13 THE WITNESS Okay. 14 MS. : -- this is directly related. 15 MR. : Okay. 16 BY MS. 17 Q And that is, Exhibit 27 is the second e-mail down, 18 is from to Jay Lefkowitz. The date is October 19 12, so that's the same day as your breakfast. 20 A Right. 21 Q And the date of it is not I'm sorry, the time is 22 9:48 a.m. Your breakfast was at 7:00. So, this would have 23 been pretty shortly after your breakfast, and writes 24 to Jay Lefkowitz with a copy to you and 25 stating that he just got off the phone with you, that is, EFTA00009126 1 S Page 311 just got off the phone with you, and then he furnishes 2 a revised paragraph one, which suggests -- I mean, I infer 3 from that that shortly after the breakfast, you had a phone 4 conversation with i a about a revision to this 5 paragraph, and that -- that that was likely something that 6 you talked to him about. Again, I'm not -- 7 8 9 A Right. Q -- suggesting that this -- A Again, I -- I don't -- I don't recall the 10 breakfast, so I can't say one way or the other. I -- I 11 take -- I take your point. I don't recall seeing this. 12 Q All right. Well, it was -- 13 A But -- 14 Q -- you were copied on it. Okay. All right. 15 you wanted to -- 16 BY MR. 17 Q I just wanted to point to Exhibit 30. 18 A Can -- can we back up a second? 19 MS. : Sure. 20 THE WITNESS , I'm not sure whether your 21 concerns are -- so, I would -- I would only raise the 22 question where -- or, the point where, based on this, and I 23 don't recall, so I can't speak, but is saying, Jay 24 suggests revision has been rejected. Here is our latest, 25 EFTA00009127 Page 312 1 And so, to -- there are multiple ways to read this. 2 One is that this was raised. Another is that we're rejecting 3 something that Jay had proposed, and -- 4 5 MS. : Mm-hmm. THE WITNESS -- because I was meeting with Jay, I 6 asked that not reject it until after I met with him, and 7 I -- I'm speculating, because I don't recall the topic, but 8 it does appear that it says, Jay suggested revision has been 9 rejected. Here is our latest. 10 MS. : All right. Thank you. 11 BY MR. 12 Q Can we just go to Exhibit 30 quickly? There's some 13 highlighted language. This is a letter from Lefkowitz to you 14 on October 23rd, 2007, where he recounts, again, the things 15 that happened, or his version of the October 12th breakfast 16 meeting. 17 A Yes. 18 Q Are you at that -- 19 A Yes. 20 Q -- at that point right there, Exhibit 30? 21 A Yeah, I'm there. 22 Q Okay. So, in the highlighted language, if you 23 could just take a look at that quickly? 24 A Yes. 25 Q So, he is recounting that you had assured him that EFTA00009128 1 EVEN/NG SESSION 2 6:00 P.M. 3 the office would not intervene with the state's attorney's 4 office, and -- or contact the civil claimants, or intervene S regarding the sentence that Epstein receives pursuant to a 6 plea agreement. 11 Q So, is he correct in his recounting that? A Can you -- can you find that for me? Q Yeah. A So, again, I don't have an independent 12 recollection. Oh, no, I'm looking -- 13 MS. : Oh, you have it. 14 THE WITNESS -- for something -- I don't have an 15 independent recollection of that breakfast, but in the 16 contemporaneous e-mails and the contemporaneous record, there 17 is correspondence between -- between and I, and you all 18 asked for this, and I I spoke with my counsel, who then 19 responded, and there's an e-mail exchange where there's an 20 October 20 -- this was an October 23rd e-mail -- October 23rd 21 letter. 22 And then there is a response that's drafted on 23 October 25th. I don't know if we can find that. From 24 to Jay that specifically addresses the point, and then I 25 respond -- runs that by me, and I respond -- I edit the EFTA00009129 Page 314 1 letter, and I move it -- I sort of emphasize -- like, I make 2 it firmer, and my edit says our office cannot and will not 3 agree to this, and then my comment to is, what do you 4 think of this rewrite? Is it too strong? S 6 7 BY MR.IIMIE: Q What day was that? A That was two days after this. I don't know if we 8 can find that in the -- in the chronological record. That 9 was October 25th. Let's just take a minute. Is that what 10 you have? 11 MR. : Sorry, apparently my ability to separate 12 paper has failed. 13 THE WITNESS Okay. So, this is -- 14 MR. : Oh, I see. 15 THE WITNESS So -- 16 MR. : Sorry, go ahead. 17 THE WITNESS So, October 25th, I'm writing to 18 what do you think of this rewrite? Is it too strong? And it 19 says, dear Jay, I'd like to take this opportunity to document 20 our conversation of October 24th which clarified some of the 21 representations in your October 23rd letter. 22 I write in particular because you indicated that 23 your intent in writing the letter was to memorialize our 24 conversations. Our agreement is limited to blank, blank, 25 blank, dot, dot, dot. EFTA00009130 Page 315 1 I specifically want to clarify one of the items 2 that I believe was inaccurate in the October 23rd letter. 3 Your office claims that this office would not intervene with 4 the state attorney's office regarding this matter, or contact 5 any of the individuals, potential witnesses, or potential 6 civil claimants, and their respective counsel in this matter, 7 and neither your office nor the FBI would intervene regarding 8 the sentence Mr. Epstein received. 9 I'm quoting Jay's letter. As we discussed and 10 hopefully clarified, and as the U.S. Attorney previously 11 explained in an earlier conference call, such promises equate 12 to the imposition of a gag order. Our office cannot and will 13 not agree to this. It is the intent of this office to treat 14 this matter like any other case. 15 Thus, as is typical, we do not desire or intend to 16 "intervene" the state attorney's office. The non-prosecution 17 agreement provides sufficient mechanisms to achieve the goals 18 of the federal investigation. You should understand, 19 however, that there are some communications that are typical 20 in these matters. 21 And so, I go on, and so my point is this was 22 pretty -- based on -- if you reviewed my -- my e-mails and 23 language, for me to write something up saying, what do you 24 think of this rewrite, is it too strong? 25 Q Mist-hmm. EFTA00009131 Page 31E 1 A And to edit language to, our office cannot 2 and will not agree to this, is not my agreeing with this 3 characterization, but my polite way of saying, this ain't 4 what I said. 5 Q Mn-hmm. 6 A Let me be clear. 7 Q And then -- 8 A Again, no independent recollection. This is just 9 based on inferring from the contemporaneous e-mails. 0 Q Okay. 1 BY MS. What I would like to do is ask a couple of questions in a couple of areas about the main justice review. Q Then take a short break, and then has some 6 questions that are CVRA related, and then we have some summary questions. 8 A 9 Q Is that all right? 20 A Can I -- before you -- you move on, can I address 21 something that was getting at, but it's getting late, 22 so I'm going to circle back to -- to -- 23 Q Please. 24 A -- something that I thought you would bring up. 25 MS. : Sure. EFTA00009132 Page 317 1 THE WITNESS So, I think something to talk about 2 is, pre-agreement and post-agreement, I think are different, 3 and one concern that I had, and I certainly shared with -- 4 with Mr.e was once it was signed -- so, we had the 5 initial issues with the case. 6 Once the agreement was signed, we now have an 7 overlying issue of, is there is the agreement binding? To 8 what extent it's binding. And so, you -- your question was, 9 why this level of process after the agreement was signed, and 10 I said I think you'll get back to that. And I think to some 11 extent, there are two parts to that. 12 One is, the office shouldn't be afraid of review. 13 We're part of the Department of Justice, and review, whether 14 it by main justice or now you all, is -- is part of the 15 process. 16 17 18 19 20 21 criminal case, but we're litigating a civil/criminal issue on 22 top of that, which is, did the agreement bind? And that's 23 something that did inform the exhausting amount of process 24 that they -- that they received, which didn't change any of 25 the outcome. And so, to the extent that they want to appeal to main, it would be unseemly to sort of say, don't review us, and I don't think it would help reviewing this, but the second part of it is if we were to walk away from the agreement, that not only are we litigating the underlying EFTA00009133 Page BY MS. 2 Q Didn't bind what? 3 A So, if we were to walk away, were -- could we still 4 prosecute? 5 Q I see. 6 A Right? Because having signed that, we were now 7 parties to an agreement, and that would overlay any sort of 8 prosecution. And So, you had these collateral issues coming. 9 BY MS. 10 Q Just to make sure we're clear, are you saying that 11 there is -- there would have been difficulty in declaring a 12 breach so that you could then indict? 13 A Correct, and so we'd have to litigate over a 14 breach, because as much as they had collateral challenges, 15 they are very careful in saying, this is not a breach, we 16 would just like review. 17 And so, one of the issues that overlaid the post -- 18 the October going forward time period is on top of this, do 19 we now want litigation over a breach? And so, I think that 20 is why the post-agreement time period is different than the 21 pre-agreement -- 22 MS. Mm-hmm. 23 THE WITNESS -- time period. 24 BY MS. 25 Q But was part of that problem the result of the EFTA00009134 change from, here is the date that you must comply, to, you 2 must use best efforts to comply? 3 A Possibly. I would -- whether it was that, or 4 others, or other parts of the agreement, we can talk about, 5 but how -- once the agreement was signed, and they do not -- 6 and they start pushing the date, there becomes a legal issue 7 over, are they really in breach or not? 8 And I'm not -- I understand your perspective. I'm 9 just saying, you know, earlier I said that there was a 10 difference. You asked about the process, and I said from my 11 perspective, there's a difference between the pre-agreement 12 and the post-agreement time period. 13 And much of that difference is informed by, if we 14 declare a unilateral breach, how does this hold up in court? 15 Because now there's a signed agreement that the United States 16 is a party to. 17 Q And are you saying that part of the reason, or 18 maybe all of the reason that you continued to give 19 accommodations and process and delay was because of the 20 concern that you couldn't actually win a breach argument? 21 A I think that was a consideration. Another part of 22 the considerations are if someone -- if a party wants to 23 take -- I mean, main justice gave a lot of process. It 24 wasn't -- it wasn't, you know, it wasn't just to -- to 25 but it was up to the -- it was just up to the assistant EFTA00009135 Page 32C 1 attorney general for criminal division, to be polite, but it 2 was up to the DAG. 3 And so, if main justice is going to give this 4 degree of process, we should -- we should be in the position 5 of saying go forward, as opposed to, I don't think it looks 6 positive for the office to be viewed as fearing department 7 review. 8 Q But were you giving the impression to the 9 Department of Justice that you were the one who wanted this 10 review so that they felt like, well, it's not just these defense attorneys who we can blow off, it is an United States Attorney who is asking for this review, and so therefore we 13 need to give the courtesy of reviewing this? 14 A I don't think I asked for it as opposed to saying, 15 if you would -- so, from the very beginning, they said that 16 they're going to take this to the Deputy Attorney General and 17 Attorney General. 18 And I said, if you want to, fine. They just 19 finally did, but that was not -- that was not -- I think they 20 raised that as early as August or September. And so, I'm not 21 surprised that it ended up there. I also thought it was 22 important to not be in the position of fearing review. 23 think if you look at the contemporaneous record, there's an 24 effort on our part to expedite the review. 25 BY MS. EFTA00009136 Page 321 1 Q But there's a difference between, have at it, go, 2 do what you want, up at main, and getting that -- 3 Right. 4 Q -- that non-opposition, and actually sending a 5 signal to -- in the -- in the case of the criminal division, 6 the assistant attorney general, in the case of the DAG's 7 office, Mark Filip or his assignee, that you supported their 8 review, that the -- this appeal process. You could have 9 said, look, we're going to go ahead and get on with our 10 business. 11 If they want to -- if -- you could have not so much 12 opposed a review, but not seconded their request for -- the 13 defense request for reviews, or not in fact invited the 14 reviews. 15 A So, I'd be curious as to the timeline. I would 16 take issue with, I invited the reviews, and I question 17 whether, did they initiate the reviews on their own, and then 18 I said have at it, or did I -- based on -- I mean, you've got 19 more of a record than I do, or did I invite -- I don't -- I 20 would say I did not invite the reviews. 21 Q Well, let me -- bad terminology, perhaps. Let me 22 ask you this. If -- would've -- did you convey to the 23 criminal division that you wanted them to review this matter, 24 as requested by the defense attorneys? 25 A So, from my perspective, I'm thinking back 12 -- EFTA00009137 Page 322 1 Q Min-hmm. 2 A -- 12 years now. The very reason that we invited 3 to come down to Miami back in August was a sense that it 4 would end up up here. And so, if it's going to end up up 5 here, let's bring down. 6 Let's make him part of the initial meeting. You 7 know, if there are concerns, let's raise these. Let's 8 address them. Let's get them out so that we don't end up, 9 after we go forward with all of this, back in front of 10 and And it's much better to involve main justice 11 earlier. 12 And so, I would say I was trying, if anything, 13 to to involve main justice so that we didn't end up where 14 we were, and it had been my expectation that that October 15 date would have been met. 16 The collateral reviews afterwards, the collateral 17 appeals, obviously did not go as -- as we planned, and -- and 18 it was my sense, we were going to end up at main justice one 19 way or another. 20 Q So, my question is in December, after the December 21 meeting -- 22 A Right. 23 Q -- that you had with defense counsel, and they told 24 you they were going to go to main justice. 25 A Correct. EFTA00009138 Page 323 1 Q To the criminal division. Did you convey to main 2 justice criminal division that you wanted them to conduct the 3 review that defense counsel were seeking? 4 A So, I don't recall what I may or may not have 5 conveyed. I think my recollection was, if they want a 6 review, that's their right. We're not -- as a department, 7 we're not in the business of telling individuals that they 8 can't take something to your supervisor, or your superior. 9 Whether -- whether main justice takes this on or not is 10 ultimately at their discretion. 11 Q Would it surprise you to learn that the criminal 12 division front office understood you to be requesting their 13 review, the review that was sought by defense counsel? 14 A Would it surprise me? Perhaps. My -- my -- my 15 understanding -- recollection is we shouldn't fear it. If 16 they want it -- 17 Q mm-hmm. 18 A -- that's their right. I thought by inviting 19 down in the first place that we had at least tried to address 20 that early on, but I also thought that we might end up there 21 in the first place. 22 Q Were you -- were you aware that a decision was made 23 to grant the decision by your office to grant defense 24 counsel's request their insistence that 25 role in the criminal division review be limited to review EFTA00009139 Page 324 1 only, and that he not be permitted to -- or that the criminal 2 divisions -- that the -- I'm sorry, I misspoke. That because 3 IIIMINIMIllhad already been involved in essentially 4 being a prosecutor on the case -- 5 A Right. 6 Q -- that the -- the criminal division and CEOs' role 7 vis a vis this review should be review only. That is, they 8 should be taken off the case as a -- as a partner? 9 A So, I sought e-mails to that affect in the record. 10 I don't have an independent recollection 12 years -- 11 Q you -- 12 A 13 Q Do you think you were involved in that decision? 14 A To take them off? 15 Q Yes. 16 A To my recollection, I wanted them on as a partner, 17 and I think the contemporaneous -- 18 Q ME-hmm. 19 A -- e-mails from is, can you please come on 20 board? 21 Q But that was earlier, before this review process? 22 A No. No. Even after the -- 23 Q All right. 24 A -- review process, I think there are 25 contemporaneous e-mails where we're saying it's important EFTA00009140 Page 325 1 that you be part. If we go to trial, it's important that you 2 be part of the trial. As I -- as I went through the record, 3 at least I remember -- 4 Q Me-hmm. 5 A -- an e-mail, perhaps from to that I'm 6 copied on saying, hey, can you reconsider? It's important 7 that you be part of this. 8 9 10 11 12 Q Reconsider the review only limitation? A No, no. Reconsider being a part of the trial Q Oh. All right. A -- team. Q All right. So, to be clear, do I understand that 13 you -- correct me, that you don't have a recollection one way 14 or the other whether you requested the criminal division to 15 conduct the review, or could it have happened, or -- 16 A So -- 17 Q -- what? 18 A -- to the extent I -- again, I'm going back -- 19 Q Nm-hmm. 20 A -- 12 years. To the extent there is a request to, 21 it would be in the context of, this is going to Washington. 22 We're not fearful of this. Have at it. 23 Q And you would have conveyed that to Washington? 24 Not just to the defense attorneys, is that correct? 25 A I imagine in some way. It's -- EFTA00009141 Page 326 1 5 Q All right. BY MS. Q And just one -- A Yeah. Q -- just one point. This one -- this one was a 6 little bit of an -- 7 A Yeah. 8 Q -- odd posture, however, because you had a signed 9 agreement. And so, you know, basically a contract between 10 parties -- 11 A Right. 12 Q -- and particularly on Mr. Epstein's side, a party 13 who was -- who was extremely well represented. So, was there 14 any consideration on your part, instead of saying, hey, 15 everybody's got a right to review, knock yourself out, go up 16 to Washington, as opposed to saying something like, that ship 17 has sailed, guys. You signed this agreement. We're going 18 forward. You don't go forward. You're in breach. End of 19 story? 20 A So, his counsel are raising serious issues that go 21 to ethics and go to fundamental relationships between 22 sovereigns. Is this 22.55 appropriate as a matter of federal 23 policy? Is what we're doing an overreach, you know, is what 24 we're doing contrary to law? Are we extracting -- I'm 25 characterizing. This may or may not EFTA00009142 Page 327 1 Q MM-hmm. 2 A -- be accurate. Are we extracting unduly? Are we 3 using criminal law to extract civil concessions in an 4 ethically suspect way? Those are serious issues. That isn't 5 just, is this a good case? 6 Those are -- those are genuine issues. I happen to 7 think that, as I recall, that we were in the right or we 8 wouldn't have agreed to it, but by the same token, let's 9 assume that main justice ultimately disagreed. Is that from 10 a main justice perspective? And maybe I'm coming at this 11 from a -- you know, being informed by having been at main 12 justice. 13 Q mm-hmm. 14 A Where there was talk about, can you believe what 15 this AUSA -- this AUSA may have done or may not have done 16 without consulting, that these are serious issues. They 17 establish precedent. 18 They -- you know, maybe the DAG would have said, 19 this is not the kind of thing we'd support, and this is 20 wrong. And so, at the end of the day, let's move forward, 21 but if -- once these issues are raised, I don't think a U.S. 22 Attorney should say main justice should not review this. 23 I think we're part of one department, and these are 24 valid issues. Main justice doesn't need to take months to 25 review this. Main justice can expedite their review, but EFTA00009143 Page 328 1 those are valid issues for the deputy and the AAG to review. 2 Q But one could look at it and say, well, those are 3 all issues that the defense certainly knew about before they 4 signed that agreement, and having signed the agreement, they 5 are waiving all of that. That's what contracts are for. 6 You've got all these issues, don't sign the contract. 7 A And if I could, I think there's a December letter. 8 I don't know if it's -- if it's in the exhibits, but there's 9 a December letter that I wrote that, for me, is -- 10 Q This is the 19th? 11 A Maybe it's the 19th. Let me -- 12 Q Or the -- 13 M. The 19th is the -- your sort of 14 ill-fated NPA addendum effort. 15 THE WITNESS No. No, a letter to -- to Ken Starr 16 that I -- that I wrote. But -- 17 MR. : The 4th letter is to Ken Starr. 18 THE WITNESS I'm sorry? 19 MR. : Is it the December 4th letter? 20 THE WITNESS Yeah, it's probably -- 21 MR. : December 4? 22 THE WITNESS It's the December 4th. 23 MS. : Yeah, it didn't have a date. 24 MS. : All right. That's the one you 25 wrote -- EFTA00009144 Page 329 1 THE WITNESS So -- 2 MS. : -- to him -- 3 THE WITNESS -- so -- 4 MS. : -- in response to the -- 5 THE WITNESS So -- 6 MS. -- 22.55 issue. 7 THE WITNESS I think, you know, I -- you know, I'm 8 starting on page four. I have responded personally in some 9 detail to your concerns because I care deeply about both the 10 law and the integrity of this office. I have responded 11 personally and in detail as well, because your letter 12 troubled me on a number of levels. Upon your understanding 13 of the negotiations are. The 22.55 was first discussed July 14 31st. 15 You know, and one of these four points in -- in the 16 middle of 2007, your defense team decides -- asked to meet 17 with me. On September 7th, I met. After considering of the 18 arguments, and after conferring with FBI and 19 our office decided to proceed with the indictment. At that 20 time, I offered to delay -- our prosecutors to delay 21 presentation to allow you to appeal our decision if you 22 choose. You chose not to. 23 Instead, you elected to enter into the NPA. Since 24 the signing of this agreement, the feds in our office have 25 addressed several issues that have arisen, although the EFTA00009145 Page 330 1 exchanges at the time were a bit litigious. 2 BY MS. 3 Q This -- could I -- could I thought point out -- 4 i•. Yeah. 5 Q -- that this letter is in response to not the at 6 the request for a review by the criminal division, that comes 7 later. This is in response to Ken Starr's letter to 8 about -- raising 22.55 -- 22.55 issues that had not 9 been raised with you before. 10 A Right, which is -- which is in essence a review. 11 mean, he -- they're coming to main justice, and you know, 12 it's against these many previous foregone opportunities to 13 object that I receive with surprise your letter requesting an 14 11th hour after the fact review of our agreement. Although 15 it happens rarely, I don't mind this office's decision being 16 appealed to Washington, and have previously directed our 17 prosecutors to delay. 18 Indeed, I'm confident in our prosecutor's evidence 19 and legal analysis. I nonetheless 20 directed them to consult with subject matter experts in the 21 criminal CEOS division to confer to our interpretation of the 22 law before proceeding with this indictment. So, I guess, you 23 know, we consulted CEOS. 24 I'm thus surprised to read a letter addressed to 25 the department headquarters that raises issues that either EFTA00009146 Page 331 1 have not been raised with this office previously, or have 2 been raised and in fact resolved in your client's favor. 3 I'm troubled likewise by the apparent lack of 4 finality in this agreement. The AUSAs have been negotiating 5 with defense counsel and have for sometimes complained to me 6 regarding the tactics used by the defense team. It appears 7 to them that as soon as resolution is reached on one issue, 8 defense counsel finds ways to challenge the resolution 9 collaterally. 10 Q So, this is your protest of, it sounds like Starr's 11 effort to bypass you and go to with new issues? 12 A It is, and I'm pushing back in that, was I inviting 13 this, or was I sort of saying -- you know, that said, there 14 must be some closure on this matter. 15 Some in our office are deeply concerned that 16 defense counsel will continue to mount collateral challenges 17 to provisions of this agreement, even after Mr. Epstein has 18 entered his guilty plea and thus rendered the agreement 19 difficult, if not impossible to unwind. In closing, I ask 20 that you consult with co-counsel. 21 If after consultation with your defense team you 22 believe that our agreement is unethical, unlawful, or 23 unconstitutional, I'd ask us that you notify us immediately 24 so we can discuss the matter by phone or in person. I've 25 consulted the chief prosecutor in this case who has advised EFTA00009147 Page 332 1 me that she's ready to unwind the agreement and proceed to 2 trial if necessary, or appropriate. 3 Q So, are you suggesting that this represents your 4 protest of their appeal to 5 A So o' Q -- on this point? 7 A So, protest is a is a loaded word. What I'm 8 suggesting is, this is not an invitation to appeal to main 9 justice. This is sort of saying, enough is enough is enough. 10 Q But Mr. Acosta, in fairness, this, to clarify -- 11 A Right. 12 Q -- this is in response to a letter directed to 13 dated November 28th -- 14 A Right. Q -- 2007 raising issues that he had not raised with 16 you. The appeal subsequently that I was asking about was -- 17 A Right. 18 Q -- an appeal for a de novo review -- a de novo 19 review of the whole case. 20 A Understood, and my -- the reason that I -- that I 21 read this, you know, is this is not -- on the one hand, I'm 22 saying we do not fear review, but I don't -- this is not an 23 invitation to defense counsel to do a de novo -- I am not 24 inviting them. I'm not saying, let's have more review. I'm 25 saying, enough's enough. If they appeal, that's fine, but EFTA00009148 Page 333 1 this is not an invitation to appeal. 2 Q But there was nothing you could do to stop their 3 appeal, right? Except indict? 4 A And so the department shouldn't stop an appeal to main justice by -- you know, by threatening. 6 Q Fair enough. 7 A Because main justice has a right to review. 8 Q I should have said that -- that this -- that this 9 appeal process was stymying progress in resolving the Epstein 10 case. 11 A It was. 12 Q And you had no way -- you had no recourse, other 13 than, at least theoretically, you could have just said, you 14 know, we're -- 15 A Right. 16 Q -- going to tear it up and indict, because you're 17 in breach, in effect. 18 A Which would have raised civil litigation -- 19 Q Litigation. 20 A -- overlays, which is the point that I thought 21 merited -- 22 Q All right. 23 A -- at least flushing out. 24 BY MS. : 25 Q So, short of the department itself getting a move EFTA00009149 Page 334 1 on, and getting this thing through expeditiously, did you 2 feel like you just had to sit there and wait for everything 3 to get done? 4 A I'm not sure sit there and wait, but -- but 5 ultimately, the case did not get better with time, and there . 6 was frustration on our apart about, you know, the witnesses 7 are not getting better. You know, time 8 Q They're getting older. 9 A They're getting -- which goes back to how a juror 10 may see them. 11 MS. : Right. 12 THE WITNESS And I do recall conversations of their 13 getting older, you know, this case is not getting better. We 14 now have the civil overlay that we need to deal with. And 15 so, yes, that -- there was process, but while there was, 16 should we just call it a day, all of that factored into, 17 well, if the department is reviewing the department is 18 reviewing. 19 BY MS. 20 Q Okay. Are you -- what is your view of whether the 21 criminal division's review encompassed the NPA itself? 22 A So, the criminal division, by its terms, did not 23 did not encompass the -- the NPA. I would say that's 24 different than the deputy's review that encompassed the 25 totality of the -- of the circumstances. EFTA00009150 Page 335 1 Q Okay. Did you discuss the -- did you have 2 conversations with the DAG -- with Mark Filip about this 3 case? 4 A Not to my recollection. 5 Q Okay, and we've already talked about the submission 6 that made on behalf of your office? 7 A Which -- which -- yes, which I thought was a 8 fulsome submission, and included the draft indictment, the 9 NPA. I believe it included the term sheet and other 10 documents. 11 Q Did you or anyone else to your knowledge ask ODAG 12 to review or assess the NPA, or approve it? 13 A Not to -- before signature, not to my recollection, 14 but it was part of the ultimate review when submitted 15 the matter to the deputy, he included the -- 16 Q It was -- 17 A -- the agreement. 18 Q It was included. Their very brief letter, you 19 remember -- 20 A Mm-hmm. 21 Q -- the letter that 22 A Yes. 23 Q -- authored, that he authored. Addressed really 24 only the issue of the appropriateness of the case for 25 prosecution in your office. It did not in any way reference EFTA00009151 Page 336 1 the disposition, the plea agreement, or the NPA. 2 A So -- so, it was a brief letter. Based on 3 submission, I would have read that letter as, they had all 4 the material in front of them, and they were saying that 5 there was no misconduct or abuse of discretion. 6 Q That's correct, but they did not say that they 7 contacted -- that they addressed or assessed, reviewed even. 8 They didn't say they reviewed or approved the NPA. 9 A They -- I again, you know, I -- if the letter is 10 here, I don't know, but -- 11 Q Yeah. I have it right here. It's not marked as an 12 exhibit, but this is an letter to Jay Lefkowitz and 13 Ken Starr dated -- 14 A Right. 15 Q -- June 23, 2008 It states that this office, 16 meaning the Office of the Deputy Attorney General, has 17 completed a thorough review of the U.S. Attorney's handling 18 of the matter involving your client. 19 A And -- 20 Q And addresses the -- or, states that they've 21 received and reviewed submissions from both parties, and then 22 states that the deputy attorney general, "Will intervene only 23 in the most unusual of circumstances," in a U.S. Attorney's 24 matter, and, "we do not believe such intervention is 25 warranted here. Even if we were to substitute our judgement EFTA00009152 Page 337 1 for that of the U.S. Attorney, we believe that federal 2 prosecution of this case is appropriate. Moreover, having 3 reviewed your allegations of prosecutorial misconduct, and 4 the facts underlying them, we see nothing in the conduct of 5 the U.S. Attorney's Office that gives us any reason to 6 alter," -- 7 A Right. 8 Q -- "our opinion." 9 A And so, so, if I could point out, this office has 10 completed a thorough review of the U.S. Attorney's handling 11 of the matter. And so, handling is a broad -- is a broad 12 term, and in reference to, we believe that federal 13 prosecution of this case is appropriate, the way I recalled 14 reading that is, the federal prosecution of this case, the 15 argument was that the agreement was inappropriate because 16 this case should not have even been prosecuted, and therefore 17 that the disposition -- the federal prosecution of this case, 18 was appropriate. 19 And so, the handling of the matter, we reviewed the 20 handling of the matter, not -- not the agreement, but the 21 handling of the matter, and that the ultimate disposition, 22 if -- you know, is at least not an abuse of discretion, or is 23 appropriate. 24 Q That's how you read it? 25 A That -- that is how I read it. EFTA00009153 Page 338 1 Q And did you ever discuss that -- did you ever 2 discuss with anyone in ODAG what the scope of their review 3 was? 4 A Not to -- not to my recollection. It was a fulsome 5 submission. 6 Q Correct, but if -- if -- but the issues presented 7 by the defense were essentially federalism issues, right? 8 A So, the -- the -- again, this is -- this is based 9 on, you know, as much recollection as contemporaneous record. 10 The issues presented by the defense were, it -- in essence, 11 it was the heart of the non-prosecution agreement, which is, 12 was it -- was it an abuse of discretion to -- to proceed in 13 this case in the way that we did on the grounds that there 14 may not -- there should not have been a federal prosecution 15 in the first place, or that we were using federal criminal 16 law to -- to elicit a civil outcome. 17 And so, I don't think it's fair to sort of 18 narrow -- you can't -- you can't say that our handling was -- 19 you know, that their handling was reviewed without reviewing 20 the non-prosecution agreement. 21 Q Do you have any reason to believe that the -- that 22 either ODAG or the criminal division did -- well, that the 23 ODAG, let's stick with that -- 24 A Right. 25 Q -- did in fact review the NPA, other than to be EFTA00009154 Page 339 1 aware it existed, whatever its status might have been? 2 A So, again, it was clearly submitted. It was 3 clearly referenced. 4 Q ME-hmm. 5 A And it was clearly part of the complaint. The 6 complaint -- the heart of the complaint about our office was 7 that we were using this agreement to impose civil liability. 8 And so, I think it is fair to infer if the complaint 9 implicates the agreement, that the agreement would have been 10 reviewed. 11 Q That -- but that's your inference. You don't have 12 any -- you don't -- didn't have any specific communications 13 with ODAG -- 14 A I don't -- 15 Q -- to that effect? 16 A I don't recall a specific communication. 17 Q All right. Okay. I would like to take a short 18 break. We're getting there. 19 A I hear you. 20 Q There is -- 21 A I'm good. 22 Q -- one area that my colleague, will 23 take on -- 24 A Mm-hmm. 25 Q -- which has to do with the CVRA EFTA00009155 Page 340 1 A Right. -- and then we have some kind of wind up questions. 3 A Okay. 4 MR. IIIIIIII Can we -- before we take a break, 5 can I just -- 6 MS. IIIIIIII/ Yes. 7 MR. IME I'll try to queue up what's going to 8 be coming next -- 9 THE WITNESS Mm-hmm. 10 MR. -- and maybe that'll help us move 11 through it, because -- 12 THE WITNESS Right. 13 MR. -- you've been through a very long 14 day. 15 THE WITNESS Yeah. 16 MR. We appreciate your -- the time 17 you've put into this. You've been here for quite a long 18 time. 19 THE WITNESS Well, yeah. 20 BY MR. 21 Q The area that I want to discuss after the break has 22 to do with the ultimate notification to the victims about the 23 resolution of the case, the state plea, and the result of the 24 federal investigation, and there's going to be -- we have 25 documents that are in your -- that are already marked there EFTA00009156 Page 341 1 that might be helpful if you take a look at a couple of them 2 so we don't have to go through -- maybe during the break so 3 we don't have to go through them one by one, or I can just 4 give you a very quick overview of sort of where we're going. 5 / want to find out basically how you were getting 6 from there -- what would be the -- the state asking for the 7 U.S. Attorney's Office to make the notification to the 8 victims about the upcoming state plea that happens in 9 November of 2007. 10 That would be document 32b, to the defense then 11 finding out that the government want to notify the victims by 12 letter, and then demanding that they see the letter and have 13 some kind of comment on it. That would be document 33, an e- 14 mail from Lefkowitz. 15 Then we have an exchange of letters, but the one 16 I'd like you to look at is document 37, which is a letter 17 coming from to the defense -- not now, but you know, 18 during the break. So, I want to find out how we get from 19 that document, 36, where is writing -- 20 MS. 36. 21 BY MR. 22 Q -- as letter saying that -- citing the CVRA 23 regulations saying that the government is obligated to notify 24 the victims about the resolution of the case, and attaching a 25 draft letter to the victims telling them the time and date of EFTA00009157 Page 342 1 the state resolution and plea, inviting them to come. 2 To ultimately a letter from you coming on the 19th 3 of December 2007, which is No. 41b agreeing to not notify the 4 victims of the state plea, and agreeing with the defense to 5 have the state be responsible for putting out that 6 notification. 7 And then we end ultimately with a letter or draft 8 letter that we have that goes out to the victims in the case 9 on -- after the plea in July. Well, we have the draft I'm 10 going to show you, which comes in June, showing that the 11 letter was clearly meant to be sent after the plea as per the 12 agreement, and that is document number 51. 13 14 15 16 17 A Okay. That's -- Q So, it's a lot to -- A That's a -- Q -- unpack there. A That's a lot to unpack. We should probably take it 18 a step at the time? 19 Q Yes. I just wanted to -- 20 A All right. 21 Q -- give you an overview, because I think that some 22 of what you had mentioned earlier -- and I know -- I know 23 it's -- 24 A Yeah. 25 Q -- been a long time, so -- EFTA00009158 Page 343 1 A Yeah. 2 Q -- I'll try to orient you for the timelines. So, 3 if you'd just have a -- I've highlighted the sections of 4 th