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attempting to import unwritten limits that the deal-
makers did not include.
The government's argument, across the board, is
essentially an appeal to what it wishes the agreement
had said, rather than what it actually says. Of course,
if wishful thinking were the standard, the whole NPA
would have been thrown out long ago. The government
has spent years lamenting that agreement, and
initiated a massive OPR investigation into its execution
which resulted in OPR's conclusion that the attorneys
who negotiated it on behalf of the government did
many things contrary to internal government policy
and typical practice. (App.55) (district court order
noting OPR's findings that the NPA was "unusual in
many respects, including its breadth, leniency, and
secrecy."); see also, e.g., App. 99.
The entire co-conspirator provision itself (putting
aside the issue of the jurisdiction(s) in which it is
enforceable) was, according to OPR, unusual for such
an agreement (App. 125). But, as the amicus notes, the
fact that the deal was unconventional does not license
the government (or the courts) to rewrite it to conform
to ordinary or preferred governmental practice. Amicus
Br. 5. To the contrary, it underscores that Epstein's
negotiators sought, and obtained, an expansive guarantee.
The government also suggests that Petitioner is not
entitled to enforce the NPA because she was not a
party to it and was not named in it. Opp.15. But as the
court below recognized and as hornbook contract law
dictates, Maxwell has standing to enforce the agreement
as a third party beneficiary. App. 10. Petitioner falls
squarely within the class of persons - "any potential
co-conspirators of Epstein" – that the NPA expressly
protected. She is therefore an intended beneficiary
of the agreement, and she has standing to enforce it.
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