EFTA00101882.pdf

From: ' y, To:' Subject: Fwd: Jeffrey Epstein-Related Touhy Requests Date: Sun, 02 Aug 2020 18:48:38 +0000 With this in mind, could you please save the Touhy correspondence in the 3500 folder? Thanks. Sent from my iPhone Begin forwarded message: From: "McEnany, John (USANYS)" Date: August 2. 2020 at 2:30:39 PM EDT To: " Cc: "Jones, David (USANYS)" >, "Kochevar, Steven (USANYS)" Subject: RE: Jeffrey Epstein-Related Touhy Requests USANYS)" Determinations under Touhy are somewhat discretionary and to the extent our Office exercised discretion to give the W something the W wanted, that could be construed as a benefit. Here, it's a benefit to her civil case. You can see how that might be developed on cross. From: Sent: Sunday, August 2, 2020 1:49 PM To: McEnany, John (USANYS) (tS Cc: Jones, David (USANYS) (USANYS) Kochevar, Steven (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests John, Curious about that view — it's not a benefit conferred upon her, in the sense that this avenue to obtain documents is available to literally any person. And the witness herself makes no statements whatsoever in the communications, nor are we providing anything that we aren't also providing to the defense in discovery. Is your view that the fact of production of materials is Giglio? Or that the substance of her attorney's request and the government's responsive letter is Giglio? Just want to make sure we understand the theory. thanks, Alex. From: McEnany, John (USANYS) Sent: Sunday, August 02, 2020 13:44 To: <En Cc: Jones, David (USANYS) < (USANYS) Kochevar, EFTA00101882 Steven (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests eza BTW, I probably don't need to tell you, our Touhy communications with VB are probably disclosable as Giglio info. From: Kochevar, Steven (USANYS) Sent: Tuesday, July 28, 2020 5:32 PM To: McEnany, John (USANYS) c Cc: Jones, David (USANYS) (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests John, Per our call yesterday, please find attached an updated letter responding to the Touhy request from the Epstein victim. The Maxwell team is okay with this version of the letter. Please let me know if this is what you had in mind, or happy to discuss/change things if not. Thanks, Steven From: Kochevar, Steven (USANYS) Sent: Sunday, July 26, 2020 10:10 PM To: McEnany, John (USANYS) < Cc: Jones, David (USANYS) (USANYS) ) Subject: RE: Jeffrey Epstein-Related Touhy Requests John, cza Please find attached a letter responding to a Touhy request from an Epstein victim and the documents to be produced with it. The Maxwell team has signed off on this response. We anticipate that requester's counsel understands that the government has additional documents here and may press on why more are not being released. To attempt to address that issue up front, the letter notes that documents governed by 6(e) cannot be produced. Please let us know if you have any concerns. Thanks, Steven From: McEnany, John (USANYS) Sent: Monday, June 8, 2020 12:18 PM To: Kochevar, Steven (USANYS) Cc: (USANYS) >; Subject: RE: Jeffrey Epstein-Related Touhy Requests Good by me (USANYS) <a EFTA00101883 From: Kochevar, Steven (USANYS) Sent: Monday, June 8, 2020 12:06 PM To: McEnany, John (USANYS) c Cc: (USANYS) >; Subject: RE: Jeffrey Epstein-Related Touhy Requests John, (USANYS) We have received another informal Touhy inquiry from an Epstein victim. Please find attached a letter to victim's counsel, outlining the Touhy process. This is basically the same letter we sent to Roberta Kaplan at the outset of the prior Touhy process. We intend to proceed along the same lines with this request as with the prior request. Please let me know if you have any edits or concerns. Thanks, Steven From: McEnany, John (USANYS) Sent: Friday, May 22, 2020 6:27 PM To: Cc: >; (USANYS) >; Subject: RE: Jeffrey Epstein-Related Touhy Requests (USANYS) ; Kochevar, Steven (USANYS) <M > Thanks for the further info. With apologies, I now think Steven was right in the first place: if plaintiffs ask us for the docs and we don't have them then I guess it does make most sense for us to simply say, we don't have them, try SDFla and/or NDGA. SDFLa and NDGA may say, pound sand, and if plaintiffs subpoena one or the other of those districts, then we see if the subpoenaed district Touhy-refers the subpoena to Geoff as the "responsible" USA, and take it from there. So I am OK with Steven's plan for dealing with plaintiff's further requests as he outlines in his May 20 email. From: Sent: Friday, May 22, 2020 5:37 PM To: Kochevar, Steven (USANYS) Cc: <->; / c >; (USANYS) >; (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests ) ; McEnany, John (USANYS) dc > We do possess the FBI investigative files from the SDFL investigation. What we do not have, and avoided obtaining for a variety of reasons (including conflict issues, discovery issues, and a desire not to create even an appearance that we were stepping into the shoes of a district that was unable to prosecute due to the prior non-prosecution agreement) are any files specifically from the U.S. Attorney's Office in SDFL. As relevant here, for example, we do not have any materials relating to the purported immunity discussions relating to Lacerda; we have not identified any such materials in the FBI files, and we assume that any discussions or correspondence on that issue likely would have been between defense counsel and the SDFL USAO. On the civil side, I can't immediately think of a reason you guys shouldn't be able to make a request to either SDFL or NDGA, whichever is the right entity, for any such materials. We've just avoided literally any contact with SDFL on the criminal side. Let us know if any additional questions on this at all, we realize it's a little complex. EFTA00101884 From: Kochevar, Steven (USANYS) Sent: Friday, May 22, 2020 17:16 To: McEnany, John (USANYS) ; (USANYS) (USANYS) c E> Cc: / Ica Subject: RE: Jeffrey Epstein-Related Touhy Requests C Understood. Thanks, John. David Jones thought this approach was reasonable, but I'll check with Sarah too. Overall, I don't think we have a ton of precedent for referring folks to another USAO on a Touhy, and certainly not to a third USAO in the referral context. Some information that might be useful in this that I don't have a complete understanding of—are the materials from the S.D. Fla. investigation available to us? As in, have we ever seen or used them? If not, is there a particular reason for that? We may be in the odd situation of technically having some purview over those materials by virtue of the Touhy regs, but without access to them. But please let me know if I'm overlooking some dimension of our cooperation (if any) with the other USAOs. Thanks, Steven From: McEnany, John (USANYS) Sent: Friday, May 22, 2020 4:34 PM To: Kochevar, Steven (USANYS) >; (USANYS) Cc: (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests I have some hesitation on just referring them to NDGa for the SDFla investigative stuff. First, under Touhy section 16.22(b), the responsible USA is the USA for the district "where the issuing authority" is located. They actually have an action filed in this district, no? Like it or not, we may be stuck with dealing with their requests for does from the Florida investigation. Stephen, you might want to consult wiser Touhy heads in civ div, like Sarah for instance. Also, it is possible that Touhy does not fall within the scope of SDFla's recusal. I can't see NDGA racing to embrace doing Touhys on this. From: Kochevar, Steven (USANYS) Sent: Wednesday, May 20, 2020 7:24 PM To: McEnany, John (USANYS) (USANYS) Cc: gc > Subject: RE: Jeffrey Epstein-Related Touhy Requests All, (USANYS) C Closing the loop on this: we produced documents responsive to an Epstein victim's Touhy request about a month ago. The requesters got back to us (by phone) with a fairly lengthy list of follow-up questions about what we produced and additional/related demands. We don't have much responsive to many of their follow-ups, or do not think it would be appropriate to produce additional material they're seeking—for example, materials that are part of the ongoing investigation. Alex and I intend to have a call with requester's counsel to explain to them that we will not be producing anything further at this time. At this point, we don't plan to send them anything else in writing. EFTA00101885 One small wrinkle: they have asked us for materials from S.D. Fla.'s investigation (which we don't have) and asked whether they need to submit a separate request to that office. We intend to tell them that N.D. Ga. has stepped into the shoes of S.D. Fla. For Epstein purposes, that they can submit a request there (or to S.D. Fla.) for the materials they're seeking, and possibly provide them with a contact at N.D. Ga. if they ask. Please let us know if you have any concerns. We hope that this will be the last step on this request. Thanks, Steven From: McEnany, John (USANYS) Sent: Monday, April 20, 2020 5:52 PM To: Kochevar, Steven (USANYS) Cc: (USANYS) 4 (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests I take it we fully know that Jane Doe is Maria Lacerda? I had a little pause on handing out the GJ subpoena, but since it's something previously disclosed to her, I can't see much of a problem disclosing it to her again. So I don't have a problem with you sending this out. Thanks for your work on this, Steven. -John From: Kochevar, Steven (USANYS) Sent: Thursday, April 16, 2020 7:07 PM To: McEnany, John (USANYS) (USANYS) Cc: Subject: RE: Jeffrey Epstein-Related Touhy Requests All, (USANYS) Please find attached a letter responding to the Touhy request for documents related to Jeffrey Epstein submitted by a victim who is a plaintiff in a civil suit against Epstein's estate. I am also attaching the documents to be produced in response to the request. Please let me know if you have any edits or concerns. If not, I plan to contact requester's counsel next week, let them know about the production, and send them the letter and the documents. I'm also attaching their request letter here. (Alex, Alison, and Maurene are signed off on the letter and gathered the documents.) Thanks, Steven From: Sent: Friday, January 3, 2020 8:49 PM To: Kochevar, Steven (USANYS) Cc: McEnany, John (USANYS) sc ›; > ). (USANYS) a; (USANYS) EFTA00101886 Subject: RE: Jeffrey Epstein-Related Touhy Requests Steven, Thanks very much for drafting this, and I think generally it looks great. My only small thought would near the end, in the penultimate paragraph, where I'd suggest replacing the first two sentences with (something like): "My understanding is that you may intend to make a formal written request pursuant to the above-described regulations. [If you choose to submit .. 1" I say that only because the current language makes it sound like they were supposed to submit something in writing, or that they otherwise erred, when in fact what they actually asked for was just an explanation of the appropriate form in which to make a formal request—which they can do consistent with the regulations set forth in the letter. Does that sound alright? And of course on any of these I also entirely defer to John. thanks again, Alex. From: Kochevar, Steven (USANYS) Sent: Friday, January 03, 2020 12:55 To: Cc: McEnany, John (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests All, (USANYS) (USANYS) Please find attached an initial letter to Kaplan Hecker re: the request for information related to Epstein. Please let me know if you have any edits or concerns. Once I have sign-off, I'll send to Robbie Kaplan (by mail and at rkaplanPkaplanhecker.com or let me know if I should use a different address). Alex, assuming there are not huge changes to be made here, I think the letter/email could just go out as the next contact with Robbie on this, but I leave it up to you if/how you want to separately give her notice that it's on the way. Thanks, Steven From: Kochevar, Steven (USANYS) Sent: Thursday, January 2, 2020 7:16 PM To: Cc: McEnany, John (USANYS) (USANYS) (USANYS) Subject: RE: Jeffrey Epstein-Related Touhy Requests Alex, All sounds good to me—thanks for the call and note. I'll circulate a draft of the initial letter. Thanks, Steven EFTA00101887 From: ) <I Sent: Thursday, January 2, 2020 7:10 PM To: Kochevar, Steven (USANYS) Cc: McEnany, John (USANYS) > > Subject: RE: Jeffrey Epstein-Related Touhy Requests Steven, (USANYS) (USANYS) Thanks for talking with me this evening about this, we appreciate it. To briefly memorialize our discussion, and to loop in everybody on the case on the criminal side, you'll be the point person for requests from civil plaintiffs / victims in connection with Epstein lawsuits, and we'll work with you on those requests given our knowledge of the relevant facts and materials. In terms of this first question from the plaintiff, which was essentially presented as a question of how they should go about making a request for certain materials possibly in the possession of the Government, we'll plan to take a look at the letter you draft that will essentially set forth the requirements for making a Touhy request (e.g., similar to, or including, the kind of information in John's example below), and separately sometime early next week I'll let plaintiff's counsel (Robbie Kaplan at Kaplan & Hecker) know that they can expect to hear from someone in our Civil Division, within approximately a week or so (of when that conversation occurs), and that we anticipate that communication will include the relevant requirements of making such a request. Please let me know if I'm forgetting anything, thanks again, and talk soon. Alex. From: McEnany, John (USANYS) Sent: Thursday, January 02, 2020 10:01 To: Subject: Jeffrey Epstein-Related Touhy Requests > Alex, Steven, • Kochevar, Steven (USANYS) I spoke to Jeffrey 0 about continuing to use Steven as the POC to outsiders for Touhy requests for information relating to Jeffrey Epstein. (Thank you Steven!) Alex, please give Steven a call. Steven, FWIW, following is a markup of a "please give us a Touhy statement" email that I have used in the past. Alex anticipates that we will be getting additional requests stemming from civil litigation by alleged victims, so it would be useful to have some consistency here. Alex knows that the criminal AUSAs will have to do all the work digging for any pertinent information, but it will be useful to have another AUSA handle the actual communications, particularly since the criminal AUSAs may be dealing with the alleged victims as victim-witnesses in ongoing criminal matters. Thanks again, -John Here's some draft language you may or may not find useful: Dear XXX: I am the Assistant U.S. Attorney who will be handling the request that you made to AUSA Rossmiller for certain information relating to Jeffrey Epstein. To assist us in evaluating your request, we ask that you provide us with a detailed written statement of the litigation for which you seek this information; the pertinence of the information sought to your litigation; and the availability (or absence) of means in that litigation, including discovery, to obtain the information in question. This statement should be relatively thorough—i.e., it should EFTA00101888 not assume that the persons reviewing your request will have any particular familiarity with the litigation in question. For your information, following are the general principles that govern disclosure, in unrelated litigation, of information obtained during the course of our official duties. Specifically, the response of federal agencies to subpoenas and other third-party discovery demands is largely governed by Department of Justice regulations, commonly referred to as Touhy regulations. See generally 5 U.S.C.A. § 301; United States ex rel. Touhy V. Ragen, 340 U.S. 462 (1951) (authorizing such regulations). These regulations dictate the procedure for obtaining a government employee's testimony or government records in state or federal proceedings. The Department of Justice has its own Touhy regulations that set out the procedure it follows in responding to demands for "production or disclosure" of information from the Department and its employees for use in state or federal court proceedings. See 28 C.F.R. §§ 16.21-16.29. These Touhy regulations channel review of such demands to the responsible United States Attorney, and then provide a set of procedures for the United States Attorney to follow when considering such demands. See id. §§ 16.22(b), 16.24. These regulations apply to both current and former Government employees. See id. §§ 16.21(a), 16.22(a), 16.28. The Department's Touhy regulations prohibit any Department employee from testifying or producing documents in a case in which the Government is not a party, even in response to a subpoena, "without prior approval of the proper Department official in accordance with §§ 16.24 and 16.25 of this part." Id. § 16.22(a). For matters concerning our Office, the proper official is the United States Attorney for the Southern District of New York. Id. § 16.22(b). To facilitate the process of determining whether such approval will be given, a party seeking such information must provide this Office with an affidavit or written statement setting forth the testimony sought and its relevance to the proceeding for which it is sought. See id. § 16.22(c), (d). We will then evaluate the request in light of governing rules of procedure in the case for which the information is sought, substantive law, and privilege; specific statutory prohibitions such as may apply to federal tax information, grand jury matters, or classified information; and the requirement of Deputy or Associate Attorney General approval where the disclosure would identify a confidential source over the objection of the agency or source, would interfere with enforcement proceedings or reveal sensitive investigative techniques, or would reveal trade secrets without the owner's consent. See 28 C.F.R. § 16.26. To the extent information sought derives from a criminal investigation, such information may be subject to, inter alia, the law enforcement privilege. The law enforcement privilege protects against the disclosure of information that would "reveal a confidential source or informant, . . . reveal investigatory records compiled for law enforcement purposes . . . interfere with enforcement proceedings[,] or disclose investigative techniques and procedures . "Id. § 16.26(b)(4)-(5); see also In re City of New York, 607 F.3d 923 (2d Cir. 2010); In re Dep't of Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir. 1988); Tuite v. Henry, 181 F.R.D. 175, 176 (D.D.C. 1998) ("The federal law enforcement privilege is a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement"), aff'd, 203 F.3d 53 (D.C. Cir. 1999). The Government's privilege not to disclose material contained in the files of criminal investigations is well-recognized. See In re Department of Investigation of the City of New York, 856 F.2d at 483; Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984); Kinoy v. Mitchell, 67 F.R.D. I, 11 (S.D.N.Y. 1975) (discussing privilege for files compiled in connection with a criminal investigation). To the extent documents are sought for use in state court proceedings, note that the Department's decision whether to authorize testimony or produce documents is not reviewable in state court. Review of the agency's decision may only be had pursuant to the federal Administrative Procedure Act in federal court. See US. EPA v. Gen. Elec. Co., 197 F.3d 592, 598-99 (2d Cir. 1999) (review pursuant to Administrative Procedure Act), modified in part, 212 F.3d 689 (2d Cir. 2000); 5 U.S.C. § 702 (sovereign immunity waived to permit Administrative Procedure Act only in "a court of the United States"). Federal sovereign immunity bars any proceeding in state court to enforce a subpoena or otherwise compel testimony or production of documents. See Louisiana v. Sparks, 978 F.2d 226, 234-36 (5th Cir. 1992); Boron Oil Co., 873 F.2d at 69-71; see also, e.g., People v. Rodriguez, 546 N.Y.S.2d 861, 862-63 (1st Dep't 1989) (holding that "state courts are without authority to compel production of such files without the federal government's consent"); People v. Carbonaro, 427 N.Y.S.2d 701, 702-03 (Kings Co. Sup. Ct. 1980) (quashing subpoena served on federal employee where Department of Justice ordered him not to comply); Jacoby v. Delfiner, 51 N.Y.S.2d 478, 479 (N.Y. Co. Sup. Ct. 1944), aff'd, 63 N.Y.S.2d 833 (1st Dep't 1946). EFTA00101889