Privacy rights versus press freedoms took center stage Wednesday at an explosive federal appeals court hearing in New York, where lawyers argued to unseal confidential court files that could reveal evidence of an underage sex trafficking operation allegedly run by New York multimillionaire Jeffrey Epstein and his partner, British socialite Ghislaine Maxwell.
The U.S. Court of Appeals for the Second Circuit reserved judgment in the case, but the panel suggested it was leaning toward the release to the public of vast portions of the court record. The file on the case, which was settled in 2017, contains more than 1,000 documents, lawyers said during oral arguments led by the Miami Herald, which seeks to open the entire file.
Most of the documents, including court orders and motions, were filed under seal or heavily redacted, similar to other cases in New York and Florida involving the wealthy, politically connected money manager. Epstein, now 66, was not a party to the lawsuit, which was filed against Maxwell in 2015 by Virginia Roberts Giuffre, who claimed she was recruited by the pair to perform massages on them when she was 16 and known as Virginia Roberts. Giuffre claims she and other girls were sexually abused and pimped out to a number of wealthy influential people from 1999 to 2002.
Sign Up and Save
Get six months of free digital access to the Miami Herald
The Herald said that while some redactions of personal information, including the names of other possible underage victims, are appropriate, the blanket sealing of the case violated the First Amendment, which grants citizens a presumptive right of access to court records, except in the rarest of circumstances.
The Herald’s lawyer, Sanford Bohrer, told the three-judge appeals court panel that the case should be unsealed in its entirety because the law provides the public with access in order to hold legal institutions accountable and to maintain confidence that they will protect the most vulnerable in society.
Two other parties to the appeal, attorneys for Harvard lawyer Alan Dershowitz and conservative social media blogger Michael Cernovich, also argued to unseal the entire case file. Dershowitz’s lawyer, Andrew G. Celli Jr., wanted the court to release three documents immediately, saying they were necessary to exonerate his client, who has been accused of being involved in Epstein’s crimes.
Dershowitz, 81, was among a team of lawyers who represented Epstein when he came under criminal investigation in Palm Beach in 2005. Epstein was accused by more than three dozen girls, most of them 13 to 16, of luring them to his mansion to give him massages that turned into sex acts. He then used those same girls to recruit more girls over a period of several years, court and police records show.
In 2008, Epstein received an unusually lenient plea deal that gave him and an untold number of others who were not cited by name immunity from federal prosecution. That plea deal was brokered under former Miami U.S. Attorney Alexander Acosta, who is currently President Donald Trump’s secretary of labor. Acosta’s handling of the case is now under investigation by the Justice Department.
Last week, a federal judge ruled that the agreement was illegal because Acosta and other prosecutors failed to inform Epstein’s victims about the deal in violation of the Crime Victims’ Rights Act.
Maxwell, the daughter of the late British publishing baron Robert Maxwell, has never been charged and has denied that she was involved in any crimes.
Dershowitz has disputed allegations that he was involved. He maintains the court record in the case contains evidence that Giuffre was writing a book manuscript at the time she publicly accused him of having sex with her when she was underage.
Prior to the hearing, Dershowitz’s attorney had suggested that the appeals panel might want to allow him to present part of his argument outside the presence of opposing lawyers, the news media and the public. The judges did not grant or even address that suggestion, made in a letter to the court.
After the hearing, Dershowitz held a news conference, calling for a federal criminal investigation into Giuffre and her lawyers, calling them liars. The spectacle continued outside the Manhattan courthouse, with Dershowitz claiming that Giuffre and her lawyer, David Boies, conspired to lie about him for financial gain.
The case at the heart of Wednesday’s appeal is a defamation claim. Giuffre’s lawyer, Sigrid McCawley, told the Herald that the case was settled in her client’s favor in 2017. The amount of the settlement was confidential.
Cernovich’s lawyer, Marc Randazza, pointed out that the file contains “pages and pages’’ of blacked-out paragraphs.
“I’d expect this from a [Freedom of Information Act] request to the CIA,’’ he quipped to the judges during the hearing.
Ty Gee, a Denver lawyer representing Ghislaine Maxwell, however, argued that nothing in the case should be made public, since several witnesses provided statements during the litigation under the presumption that they would be kept confidential. He explained that the district court judge who presided over the case, Robert W. Sweet, was “overwhelmed’’ because he was bombarded by attorneys with requests to seal document after document, to the point where all the parties simply agreed to seal nearly everything to move the case along.
Bohrer, however, said that isn’t the way the court system should work.
“The judge abdicated his role as a judge,’’ Bohrer said, adding that each request should have been considered individually, given that transparency is generally in the public’s interest.
Bohrer suggested that the appeals court assign a district court judge to oversee a process to consider the release of documents, a suggestion that the panel seemed to agree on.
Circuit Court Judge Jose A. Cabranes asked Gee whether he would agree to release any documents now that the case is settled. Gee said nothing should be made public.
“You can’t possibly be serious,’’ Cabranes responded in disbelief.
Part of the record contains details about Maxwell’s sex life, and it would be a violation of her privacy to unseal those documents since they involve consenting adults, Gee said.
Lawyer Paul Cassell, who represents Giuffre, said his client wants the entire record unsealed so that the public knows the full extent of Epstein’s and Maxwell’s sex trafficking operation.
In one of the more unusual arguments in the case, Cassell said Cernovich was a self-described “slut shamer’‘ who was working in concert with Dershowitz to discredit his client, who now lives in Australia.
That description later prompted Judge Rosemary S. Pooler to jokingly ask Dershowitz’s lawyer whether his client was part of a “slut shaming cabal.’‘
Celli said Dershowitz has endured more than two years of ridicule over the allegations by Giuffre, which were largely made in court documents that are privileged — that is, shielded from a defamation claim.
Dershowitz has publicly baited her to accuse him in public so that he can sue her for slander.