Why the Huge Conflicts of Interest Among Trump’s Epstein Team Matter
His former personal lawyers are overseeing the Department of Justice.
TRY WRAPPING YOUR HEAD around this:
Donald Trump has had one of his former personal lawyers, Attorney General Pam Bondi, send another of his former personal lawyers, Deputy Attorney General Todd Blanche, to gather evidence from a witness who is seeking his presidential pardon, Ghislaine Maxwell, in a criminal investigation in which Trump himself is a witness and possibly a subject, into whether any of the former friends and associates of sexual predator Jeffrey Epstein, of whom Trump was one, might have been criminally complicit in Epstein’s abuse and trafficking of young girls.
Could performative “justice” get any tackier or more corrupt than that?
The very idea that Trump’s former personal lawyers would play a role, much less a potentially decisive role, in determining whether he was complicit in any of Epstein’s misdeeds is an insult to our criminal justice system.
There is no publicly known evidence implicating Trump in any of Epstein’s despicable crimes, but he was close enough to it to be a person of interest. Trump was more than a mere casual acquaintance who had the misfortune of briefly crossing Epstein’s path. Although the two supposedly had a falling out at some point, Trump’s fifteen-year relationship with Epstein featured not only photographic evidence of the two of them reveling in the company of young women, but also smarmy boasting about what a “terrific guy” Epstein was and “it is even said that he likes beautiful women as much as I do, and many of them are on the younger side.” The Wall Street Journal’s report—which Trump has denied—that his signature appeared on a bawdy note and lewd drawing contained in a leather-bound album celebrating Epstein’s fiftieth birthday makes Trump’s involvement with Epstein look even uglier.
None of this is enough to make Trump a “target” of a federal criminal investigation—a person who is linked to the commission of a crime by substantial evidence and who is a likely defendant in the eyes of the prosecutor. But it is more than enough to make his conduct worth looking into. Indeed, it has been reported that as many as a thousand FBI personnel were ordered to review Epstein-related records and to flag any in which Trump was mentioned, although this appears to have been more of a CYA operation than a genuine investigative step.
It’s a safe bet to predict the outcome of this sham investigation: Trump’s former lawyers, relying in large part on what they will claim is the lack of any incriminating evidence from the witness seeking his pardon, will conclude that there is no “there” there, at least with respect to Trump. (God help others Bondi might have to prosecute if something unexpected popped up in the investigation that was too explosive to sweep under the rug. But that’s not likely. More on that below.)
This charade not only stinks to high hell, it is also wildly unethical and would undoubtedly taint any prosecutorial decisions—including decisions not to prosecute—in ways that would do serious harm to the public’s faith in the criminal justice system.
Bondi was one of the lawyers who represented Trump in his first impeachment trial. Blanche is much more deeply embedded in the Trump legal defense team. He represented Trump in the classified documents case in Florida, the election interference case in Washington, D.C., and, perhaps most importantly, in the New York criminal trial in which Trump was convicted on thirty-four counts of falsifying business records relating to hush-money payments he made to cover up his alleged sexual encounter with porn star Stormy Daniels.
Trump, of course, is not only a former client, but also Bondi’s current boss. Blanche’s too.
There is no federal regulation or specific guidance that speaks to the exact issue here: Can a senior Justice Department official participate in a criminal investigation and make prosecutorial decisions in a matter that involves a determination either to prosecute or not to prosecute a person who is both a former client and her/his current boss?
Why would there be? Who in their right mind would anticipate that this kind of thing might happen, much less consider it worthwhile to waste time dreaming up a question the answer to which is so blatantly obvious that it answers itself?
Bondi and Blanche may not have formal, black-letter conflicts of interest in this matter, but they are far from disinterested, not only because they used to be Trump’s lawyers, but also because they currently work for Trump in high government positions. They should be nowhere near this “investigation.”
Lawyers have serious ethical obligations to former clients that do not vanish after the representation has been completed. Those obligations vary to some degree from state to state, but the core duties that lawyers owe former clients are pretty standard. For instance, unless they have clear written consent of their prior client, lawyers can’t represent another client in the same or a “substantially related” matter, they can’t take actions that would injure their former clients in matters related to their prior representation, and they can’t use information they obtained in the representation to the disadvantage of their former client.
Lawyers who leave private practice to become prosecutors are held to especially high standards with regard to matters that involve their previous clients. While the ethical obligations of prosecutors with regard to previous clients can be a complicated subject, the general rule is that prosecutors should not be involved in the prosecution of a former client. The American Bar Association’s model Criminal Justice Standards state it unequivocally: “The prosecutor should not be involved in the prosecution of a former client.”
Gathering evidence that could be used in a decision to prosecute a former client is clearly involvement in the prosecution, and it could have disastrous consequences in a criminal case.
Can you imagine what the Trump defense team would say if Trump were indicted for an Epstein-related crime based—or even appearing to be based—on evidence obtained from Maxwell by Trump’s former attorney, Blanche? They would undoubtedly move for dismissal of any such charges on the ground of prosecutorial misconduct. Having represented Trump in the Stormy Daniels hush-money case, Blanche undoubtedly has, or at least would be presumed to have, a vast trove of confidential client information regarding Trump’s patterns of personal conduct and legal strategy, especially in a case involving alleged sexual misconduct. Blanche’s possession of that kind of confidential client information would seriously taint any attempt to prosecute Trump in a case he helped to investigate.
Trump’s lawyers would have a field day. They would put Blanche on trial. Trump would likely walk. Again.
But we don’t have to worry about that because it’s not going to happen. Neither Blanche nor anybody else who wants to hang on to a job in Trump’s DOJ is going to even whisper a suggestion that Trump should be charged for anything related to Epstein, regardless of any facts unearthed during the “investigation.”
The more pertinent real-world question is how Blanche’s participation in the process might impact a decision not to prosecute Trump, which everybody knows is where this is going.
What saves the day for Bondi, Blanche, and a Justice Department that has morphed into just another Trump legal defense team is the highly asymmetrical consequences of a potential decision to prosecute Trump, on the one hand, and a decision not to prosecute him, on the other.
Serious consequences, including possible dismissal of any charges for prosecutorial misconduct, could flow from a decision to prosecute Trump that was tainted by the participation of his former attorney.
But a decision not to prosecute Trump, no matter how tainted, probably wouldn’t have any legal consequences at all. If nobody is charged with Epstein-related crimes, there would be no legal proceeding in which the decision not to prosecute Trump could be challenged. If others are charged, but not Trump, they could conceivably raise challenges based on claims of selective prosecution, coverup, or something similar. Most judges would be unmoved by such defenses, especially if the evidence against the others were solid, but that would prolong the life of the story about Trump’s relationship with Epstein and could have negative political consequences for Trump, his enablers, and the election prospects of other Republicans.
That’s why it seems like a pretty good bet that no charges will be brought against anybody—that’s by far the best way to help Trump achieve his oft-stated goal: kill the Epstein story.
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