Of Course Ghislaine Maxwell Took the Fifth

By Andrew C. McCarthy

Monday, February 09, 2026

 

I’m trying to assess whether there is anything in life less surprising than that Ghislaine Maxwell asserted her Fifth Amendment privilege against self-incrimination rather than answer questions at a showy House Oversight Committee deposition that was scheduled for today.

 

Nothing comes to mind.

 

The committee’s chairman, James R. Comer (R., Ky.) said he found the non-testimony “very disappointing.” I don’t understand why. (Well, I mean, since this is all for show, I do understand why, but logically there can have been no other outcome.)

 

To recap, surrogates of the president’s 2024 campaign, including Pam Bondi and Kash Patel, who were later tapped to run the DOJ and FBI, got Trump supporters spun up about a massive Epstein cover-up — the notion that the Biden administration was suppressing what should have been charges against a pedophilia ring in which Epstein and Maxwell were supplying underage girls to prominent “clients.”

 

The conspiracy theory never made any sense — and I say that as someone who has proved more than his share of actual conspiracies. First, the Biden DOJ, which indicted Trump twice and provided assistance to Democratic district attorneys who also indicted Trump, was trying hard to make any criminal case against Trump that might stick. Second, it is inconceivable that the Epstein prosecutors in the Southern District of New York (SDNY), led by Maureen Comey, daughter of former FBI Director James Comey, would have buried a career-making case against Trump or any other prominent person. Third, as Rich and I have discussed on the podcast several times, the big problem — the most publicly misunderstood problem — is that most sex crimes are not federal; they are state offenses. That includes sex with underage persons.

 

The relevant federal crime is engaging in an interstate or international sex-trafficking business, and it appears the people who did that were Epstein and Maxwell, both of whom were charged. Having sex with a minor is abhorrent; in most states, it is statutory rape; but it is generally not a crime over which federal prosecutors have jurisdiction. For the feds to prosecute, they need to prove that people were in on the business, not that they were taking occasional advantage of a business someone else was running. That is why so much of the proof against Epstein and Maxwell involved recruiting girls and moving them across state lines.

 

It was also dumb for Trump supporters to promote an Epstein conspiracy theory because, politically, that was apt to be disastrous for Trump. He had a long-term, tight relationship with Epstein, so if you’re saying Epstein was radioactive so all the eminences around him were suspects, then that necessarily makes Trump a suspect, even if he didn’t do anything criminal. Notwithstanding the lack of evidence that they committed crimes, Trump and other prominent people who ran in the circles of Epstein and Maxwell were sure to be humiliated: Epstein and Maxwell were heinous characters, and thus associations with them — particularly in the period after it was known Epstein was under criminal investigation for sex-trafficking minors — were unsavory.

 

There was no way that publicity that would inexorably highlight Trump’s ties to Epstein and Maxwell was going to be anything but a political nightmare. On this subject, however, many prominent Democrats also had an interest in having the Epstein story fade away — it was not the type of thing Democrats were apt to use against Trump for fear of burning their own (it’s not like he didn’t give them plenty of other material). Hence, Trump should have been telling his campaign surrogates and top supporters to stop talking about Epstein. Instead, they talked about it non-stop, and the MAGA base became inflamed.

 

Naturally, once these surrogates got Trump administration jobs, Trump supporters demanded that they back up their cover-up claims. These claims were baseless, so they had to confess that there was no there there beyond what had already been prosecuted — Epstein’s indictment (followed by death before a trial could happen) and Maxwell’s trial and conviction. If they had left it at that, then, once Maxwell was sentenced to 20 years’ imprisonment on her convictions, they could have given her immunity, and she’d have no legal basis to decline to testify.

 

Instead, because of the furor they’d ignited, President Trump and his subordinates ended up doing another about-face. Trump couldn’t keep his supporters in line. Democrats sensed that there was blood in the water: Using Epstein to sow divisions between Trump and his base was worth the price of burning the Clintons and other high-profile Dems of diminished influence who are tainted by Epstein connections.

 

Consequently, enough Republicans mutinied and announced that they’d join Democrats in demanding a highly inappropriate mass disclosure of the government’s Epstein files. (The government customarily makes public only criminal evidence in connection with formal charges; investigations always generate revelations about other indecorous but non-prosecutable behavior, and under DOJ rules — based on constitutional due process concerns — that dirty laundry is not aired.) Trump saw which way the wind was blowing and switched from trying to suppress the Epstein files to ostensibly supporting disclosure — but he implausibly maintained that what mattered was the Democrats’ relationships with Epstein, not his own, even though he is the incumbent president and the figure about whom the media is most curious.

 

Of course, the Trump DOJ and FBI followed the boss’s lead. Despite only weeks earlier telling us they’d been through the files and that there was nothing more to see, they then announced that, in tandem with the mass disclosure, they were reopening the criminal investigation, which would be run by Jay Clayton, the Trump-appointed U.S. attorney in the SDNY. This would give the DOJ leeway to withhold information that it did not wish to disclose, on the rationalization that it was connected to the “ongoing investigation.”

 

If the government claims there is an ongoing investigation, that means Maxwell’s lawyers have to assume she could still be charged with other crimes. Hence, she still has a very live Fifth Amendment privilege. Without immunity, whatever she says can be used by the DOJ to indict her.

 

Plus, Maxwell is a 64-year-old socialite who was sentenced to 20 years of incarceration in 2022. Her tastes are more Côte d’Azur than Bureau of Prisons. She is desperate not to live out all or most of her remaining life in detention — even if the Trump administration has moved her to a facility where the time is less arduous than it should be for someone convicted of such egregious crimes.

 

If she were to testify voluntarily, she would lose the only leverage she has to pressure Trump to pardon her — or, at least, commute her sentence to time already served. Mind you, she shouldn’t have any leverage. She’s a monster and, rather than admit her guilt, she insisted on mountains of discovery, a long trial, and appeals. To be sure, it was her right to do those things. But if you’re an accomplice with inculpatory information about other (live) participants in a conspiracy, that gives you lots leverage before going to trial. Once you’re convicted, and have the misfortune that the guy above you in the culpability chain has shuffled off this mortal coil, your leverage is gone.

 

Usually, prosecutors react with an eye-roll to pleas for clemency after the clock has struck midnight. But the Trump DOJ has treated Maxwell as if she’s still got cards to play. Go figure.

 

Here’s reality: Maxwell is not testifying until she is either given a deal that provides an incentive to disclose what she knows, or is given immunity from prosecution based on which she can be forced to speak on pain of additional jail time — contempt, perjury, obstruction — if she is defiant or mendacious.

 

As I believe this saga is already several acts too long, I couldn’t care less whether she testifies — and for purposes of attitude adjustment, I would make sure she knew that. But let’s play it out.

 

If I believed there was any real chance of making one or more new criminal cases, I would immunize Maxwell and compel her testimony — but in the grand jury, not Congress. As it happens, I believe this is all a political show toward no useful end; ergo, the Justice Department might as well immunize her (Congress really can’t do it without the DOJ’s assent) and let the Oversight Committee members knock themselves out.

 

Finally, if Maxwell were given immunity, I would make it clear to her that she should be cooperative with the Oversight Committee because it’s in her interest to be. If she isn’t, she risks further prosecution. She should understand that cooperating with the committee is not going to change the DOJ’s posture.

 

And that posture? I would stress that the DOJ will oppose a pardon or any other form of clemency in her case. (In the Trump Justice Department, if the president wants to pardon an undeserving scoundrel — as he has done several times — Main Justice will of course say nothing publicly that would make it politically more difficult; traditionally, however, the Justice Department has zealously opposed clemency for undeserving scoundrels.) The DOJ should not have facilitated the transfer of Maxwell, an inmate convicted of sex-trafficking minors, to a low-security prison; to the extent that doing so may have raised Maxwell’s expectations, she should be disabused of the notion that her release is foreseeable.