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KIRKLAND & ELLIS LLP

SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL

IN THE MATTER OF JEFFREY E. EPSTEIN

Jeffrey Epstein, a successful businessman and noted philanthropist with no prior criminal
record, has been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b).
Since the limited review conducted by CEOS, two Supreme Court decisions—one authored by
Justice Scalia and the other by Justice Thomas—have revitalized the bedrock principles that
federal criminal statutes must be narrowly construed, that they may not be stretched to federalize
conduct not clearly covered by their prohibitions, and that whenever there are two plausible
constructions of a criminal statute, the narrower construction (hich safeguards liberty) rather than
the broader construction (which expands the federal prosecutor’s arsenal) controls under the
venerable rule of lenity.

Mr. Epstein’s conduct—including his misconduct—falls within the heartland of historic
state police and prosecutorial powers. Absent a significant federal nexus, matters involving
prostitution have always been treated as state-law crimes even when they involve minors. Mr.
Epstein’s conduct lacks any of the hallmarks that would convert this quintessential state crime
into a federal one under any of the statutes prosecutors are considering.

Mr. Epstein lived in Palm Beach, and his interstate travel was merely to go home. Any
sexual conduct that occurred after he arrived was incidental to the purposes for his travel. Even
CEOS admitted that applying § 2423(b) to a citizen traveling home would be “novel.” In fact, it
would be both unprecedented and in conflict with Supreme Court cases that have withstood the
test of time for over 60 years.

Moreover, Mr. Epstein did not use the internet (either via email or chatrooms) to
communicate with any of the witnesses in this investigation. Indeed, he did not use any other
facility of interstate commerce, including the phone, to knowingly persuade, entice, or induce
anyone to visit his home—the “local” locus of all the incidents under investigation—much less
to persuade, entice, or induce a known minor to engage in prohibited sex acts, as § 2422(b)
requires. Nor did anyone on his behalf “persuade” or “induce” or “entice” or “coerce” anyone as
these words are ordinarily understood and as the new Supreme Court decisions mandate they be
applied: narrowly, without stretching ordinary usage to conform to a prosecutor’s case-specific
need for a broad (and in this case unprecedented) application. In addition, as will be shown
below, § 2422(b) requires that the object of the communication be a state law offense that “can
be charged.” Yet because the state of Florida’s statute of limitations is one year for the first
prostitution offense and three years for other targeted offenses, and because all or virtually all of
the offense conduct at issue in the federal investigation occurred prior to June 20, 2005, those
acts can not be charged by the State, and thus cannot meet this essential element of federal law.

Finally, Mr. Epstein neither coerced, nor enslaved, nor trafficked, nor derived any profit
from his sexual conduct. He was an ordinary “John,” not a pimp. But § 1591 is directed only
against those who engage in force or fraud or coercion or who are in the business of commercial

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