Renato Mariotti is the Legal Affairs Columnist for POLITICO Magazine. He is a former federal prosecutor and host of the “On Topic” podcast.

In the days since convicted pedophile Jeffrey Epstein killed himself in a Manhattan jail cell, there has been a growing public outcry asking why his longtime confidante and alleged accomplice Ghislaine Maxwell has not yet been charged. Former FBI Assistant Director Frank Figliuzzi asked, “Why is she still walking around?” And after a photo (since discredited) emerged purporting to show Maxwell eating outside an In-N-Out Burger restaurant, one prominent legal analyst asked, “Why is the most wanted woman in America just walking around L.A.?”

Unfortunately, the answer is likely that law enforcement simply does not yet have sufficient evidence to ensure a conviction of Maxwell. If they had enough evidence, they would have charged her already. Getting that evidence will not be anywhere near as easy as some pundits might suggest.


The public outcry for prosecutors to quickly charge Maxwell is understandable. After all, several women, who say they were victims of Epstein, have alleged she procured underage girls for him, bragged about it, and called them “trash.” One attorney for victims alleges that Maxwell was an “active participant in the sexual abuse.” Maxwell has denied the allegations.

The indictment against Epstein charged him with a sex trafficking conspiracy. That charge allowed prosecutors to include all of Epstein’s abuse of minors in multiple jurisdictions—in New York, Florida and elsewhere—regardless of when the acts took place. To charge Maxwell with the same conspiracy, prosecutors would need to prove beyond a reasonable doubt that she agreed with Epstein to engage in sex trafficking.

Given that Epstein is dead and that criminals rarely put agreements to commit crime in writing, proof of an agreement between the two would likely rely on circumstantial evidence. But Maxwell would also be criminally responsible for Epstein’s conspiracy if she “aided and abetted” the conspiracy. That would require prosecutors to prove that she knew about the criminal conspiracy and helped to make it succeed.

Nonetheless, prosecutors would need to prove beyond a reasonable doubt that Maxwell knew that force, threats of force, fraud or coercion would be used to cause victims to engage in a commercial sex act. The bottom line is that prosecutors would need to prove that Maxwell knew Epstein abused the girls and that he used force, threats of force, fraud, or coercion to do so.

That isn’t as easy as it sounds, particularly if Epstein’s estate pays for Maxwell to have a top-flight legal team. Unlike Epstein, Maxwell does not have a prior conviction, which could have been used against Epstein at trial. Prosecutors would not be able to use affidavits to prove their case because defendants have a right to cross-examine their accusers. So victims would need to testify on the witness stand about what they saw Maxwell do. In my experience, it can be difficult for victims to face individuals who abused them as a child, and many are reluctant to do so.

At least one victim, Virginia Giuffre, alleged in a civil suit that Maxwell engaged in sex acts with her and Epstein. But before that case settled, Maxwell pointed out certain inaccuracies in Giuffre’s account and attacked her for a prior drug-related offense. Her allegations were ultimately stricken by the judge for unrelated reasons.

Giuffre made prior statements about the sex acts with Epstein and Maxwell to a man named Tony Figueroa, which could be admissible if Maxwell’s team attacked Giuffre’s veracity and Figueroa were available to testify. Proving that Maxwell was a party to Epstein’s trafficking scheme would require proving that Maxwell knew what Epstein was paying for. Ultimately, it would come down to Giuffre’s word against Maxwell’s.

Her team would argue that she didn’t know that the girls were underage, and that while she procured young women for Epstein, she had no idea he would abuse them. Her lawyers would point out that if a rich man merely wanted to look at younger women or even receive a massage from them, that would not be a crime.

It’s understandable that many of us have concluded Maxwell was in on Epstein’s scheme—I admit I share that view myself. But remember that jurors would be screened for bias and instructed to focus solely on what was admitted into evidence in court. They would be told that they could convict only if Maxwell’s guilt were proven beyond a reasonable doubt. Her team would sow doubts and claim that the government was looking for a “fall guy” to blame for Epstein’s crimes.

It’s not inconceivable that Maxwell could escape conviction. If even one juror out of 12 voted to acquit, she would not be convicted.

For Southern District of New York federal prosecutors tasked with investigating Maxwell, that possibility is what is driving them to continue their investigation, including a recent search warrant executed at Epstein’s home in the Virgin Islands.

They have plenty of leads to work with. Additional witnesses reported conversations with minors who alleged that Maxwell was involved in forcing them to submit to abuse. But prosecutors need to locate those victims and persuade them to testify, and find corroborating evidence—ideally documents, photos, or videos—to back up their accounts.

What’s at stake is how underage victims throughout the United States regard the criminal justice system. Epstein’s highly questionable plea deal from 2008, and prosecutors’ failure to inform victims of its terms, sent a message to victims that wealthy predators would not be brought to justice and that the interests of the victims themselves could be ignored when the defendant had sufficient means to aggressively negotiate a highly favorable deal.

Prosecutors vowed to continue to “stand up for the victims” when they moved to dismiss the criminal case against Epstein on Monday. But a failed prosecution of Maxwell would undermine that. That is why prosecutors continue the search for evidence, no doubt keeping tabs on Maxwell’s whereabouts as they do. Their decision not to bring charges thus far is likely calculated and careful, not corrupt or careless.

