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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.
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1 A -- but yes.
2 Q And at the time theta/MEM
saw the NPA,
to
3 he sent a message 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,
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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.
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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,
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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 --
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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.
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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?
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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?
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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
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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.
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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,
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Page 311
1 S
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 A Right.
8 Q -- suggesting that this --
9 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
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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 MS. : Mm-hmm.
5 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.
Q So, is he correct in his recounting that?
A Can you -- can you find that for me?
Q Yeah.
11 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
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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 BY MR.IIMIE:
6 Q What day was that?
7 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.
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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.
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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.
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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 And so, to the extent that they want to appeal to
17 main, it would be unseemly to sort of say, don't review us,
18 and I don't think it would help reviewing this, but the
19 second part of it is if we were to walk away from the
20 agreement, that not only are we litigating the underlying
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.
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