The Prince Andrew Interview: A Legal Analysis
The Jeffrey Epstein saga is one of the most intriguing and well-publicized legal cases to unfold this decade. Given the prominent individuals involved in this ordeal, combined with the suspicious demise of Epstein himself, the tabloids pretty-much write themselves. The televised and now-infamous “Prince Andrew Interview” complicates and compounds legal issues surrounding the greater Jeffrey Epstein case – which involves both criminal and civil law matters.
With droves of damning evidence mounting against the late Jeffrey Epstein and his powerful associates’ activities involving human trafficking and pedophilia, the victims and the public want – and deserve – justice.
But what happens now that Epstein is dead? What happens to those in Epstein’s inner circle? And can Prince Andrew, Queen Elizabeth II’s second (and rumored to be favorite) son be sued and brought to trial in the US Court System? Can his recent interview be used to legally prosecute him?
Here’s a breakdown of how Prince Andrew’s interview impacts him and the greater Jeffrey Epstein case, as well as some important legal lessons.
The Significance of the Prince Andrew Interview
On November 16, 2019, the British Broadcasting Company’s program, Newsnight, aired a 49-minute prime-time interview of the Duke of York, Prince Andrew, and his personal relationship with the late disgraced billionaire, Jeffery Epstein.
Prince Andrew’s interview, which was pitched as a “tell-all,” did not prohibit any topics or constrain any subjects. Conducted by Emily Maitlis, the interview was executed in a manner that is very similar to a cross-examination at trial or in a deposition (watch the full broadcast interview).
The interview is significant because it hit on topics of public and legal importance and relevance, such as Prince Andrew’s relationships with Jeffrey Epstein and Ghislaine Maxwell (Epstein’s girlfriend and alleged recruiter and madame for his sex-trafficking ring), his whereabouts on important dates, his sexual relationship with Virginia Roberts Giuffre, and the reaction of Queen Elizabeth II and the British Royal Family to such sordid topics.
Can Prince Andrew’s Interview Influence His Extradition?
First and foremost, by law, Prince Andrew can be extradited to the United States simply based upon his possible criminal conduct.
Extradition is the process of sending a person from one Country to another Country for prosecution or punishment.
The United States and United Kingdom entered an extradition treaty that became binding in April 2007. The treaty defines an offense as “extraditable if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.”
The sexual assault of a minor is such an offense that would be considered extraditable under the 2007 extradition treaty.
The United States Department of Justice holds approval authority over international extradition matters.
In a case like this, the Department of Justice would have to consider diplomatic concerns given Prince Andrew’s role in the British monarchy. So even with mounting evidence against the British Prince, the US Department of Justice could delay or quash his extradition for political reasons.
That may be one of the reasons why seemingly little pressure has been placed by the Manhattan District Attorney to request that the US Department of Justice extradite Prince Andrew to New York to stand trial in this case.
But all that may have changed with this interview.
Prince Andrew’s public interview has certainly complicated such political extradition questions and considerations, particularly given the overwhelming public outrage that has ensued from his interview in both the United States and the United Kingdom.
[Legal Tip] A criminal suspect is wise to assert his “right to remain silent.” Prince Andrew would similarly have been wise to follow suit and remain silent—but that ship has sailed.
But Doesn’t Prince Andrew Have Diplomatic Immunity?
Across the internet, people have raised the notion of diplomatic immunity regarding Prince Andrew’s alleged crimes that took place in the United States. Diplomatic immunity is a real thing, but it does not apply in all circumstances – not even for foreign royalty. So, let’s clear that up.
Diplomatic immunity is an international concept that ensures that diplomats of a foreign country are immune from criminal prosecution under a host country’s laws. Foreign diplomats, and specifically diplomatic agents, ordinarily cannot be handcuffed, searched, arrested, or detained.
The United States Department of State’s own guidelines state that “[T]he staffs of diplomatic missions (embassies) are afforded the highest level of privileges and immunities in the host country in order that they may effectively perform their important duties.”
The United States Supreme Court has validated this legal concept, stating that a “diplomat’s privilege is merely incidental to the benefit conferred on the government he represents.” In fact, United States Courts have previously dismissed criminal cases based on diplomatic immunity.
For example, in Abdulaziz v. Metropolitan Dade County, the Eleventh Circuit Court held that a certified Saudi “special envoy” was immune from prosecution.
In this case, Prince Andrew held the title of UK’s Special Representative for International Trade and Investment from 2001 – 2011. Prince Andrew’s official status appears to overlap with the dates that Virginia Roberts Giuffre claims she was forced to have sex with the Prince, which occurred in London, New York and on Epstein’s private Caribbean island between 2001 and 2002.
But Prince Andrew’s involvement with Epstein spans beyond the dates of his diplomatic title, and in fact began in 1999 and lasted beyond the point when his official title was relinquished. The breath of this relationship could present a concern for Prince Andrew, particularly concerning criminal allegations of conspiracy or actions subject to the Racketeer Influenced and Corrupt Organizations (RICO) Act.
Another counterargument against diplomatic immunity regards Prince Andrew’s activity in the United States during the critical period, which had no relation to any diplomatic purpose. Prince Andrew even stated that his New York visit in 2011 was primarily to terminate his friendship with Epstein.
Skeptics of diplomatic immunity would find further solace in the cases of various Arab princes who have encountered this exact question in a criminal context.
For example, in 2015 a Saudi prince was arrested for sexually assaulting a woman at his Beverly Hills mansion; an act which was discovered only after a bystander witnessed the blood-soaked victim climbing a wall to escape. The prince was then charged with sodomy, battery and false imprisonment—all crimes that could apply in Prince Andrew’s case.
In another diplomatic immunity case, a Qatari prince was arrested after racing through Beverly Hills in his yellow Ferrari at speeds topping 100 mph. Just as before, diplomatic immunity did not apply to this member of royal nobility.
[Legal Tip] Prince Andrew would be wise to consult a seasoned international attorney about topics such as diplomatic immunity before ever stepping foot in the United States. Otherwise, he might find the answer to such a question at the back of a 12’ x 12’ Manhattan prison cell.
Can Prince Andrew Face Punishment in the US?
The most obvious pitfall for Prince Andrew concerns his criminal liability. Assuming the allegations posed by Virginia Roberts Giuffre are true – that she was trafficked to Prince Andrew and had a sexual relationship with him when she was seventeen years old – Prince Andrew could be liable for numerous sex-related crimes.
Possible Criminal Charges
- Rape in the first degree (Class B Felony): Occurs when a person engages in sexual intercourse with another person: by forcible compulsion; or who is incapable of consent by reason of being physically helpless.
- Criminal sexual act in the first degree (Class B Felony): Occurs when a person engages in oral sexual conduct or anal sexual conduct with another person: by forcible compulsion; or who is incapable of consent by reason of being physically helpless.
- Sexual abuse in the first degree (Class D Felony): Occurs when an individual subjects another person to sexual contact by forcible compulsion; or when the other person is incapable of consent by reason of being physically helpless;
- Sexual Misconduct (Class A Misdemeanor): Occurs when an individual engages in sexual intercourse with another person without that person’s consent;
- Forcible touching (Class A Misdemeanor): Occurs when a person intentionally, and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.
Possible Criminal Sentences
If convicted under such sex related charges, Prince Andrew could face up to twenty-five years behind bars at New York’s famous Riker’s Island penitentiary.
But Prince Andrew’s criminal concerns extend far past sex-related crimes. He could be also be charged with criminal conspiracy for the sexual misconduct described above. Such charges would regard his agreement with Jeffery Epstein and/or Ghislaine Maxwell to solicit and engage in sexual conduct with Virginia Roberts Giuffre, which is a Class B misdemeanor.
Prince Andrew could also face criminal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, which extends criminal and civil penalties to a criminal enterprise. A credible argument could be made that Jeffrey Epstein and his powerful friends—including Prince Andrew—constitute a corrupt enterprise under the RICO Act’s broad definition.
Although the RICO Act was originally intended as a measure for prosecutors to target the mafia, it is commonly used against organizations and/or associations that have far-fewer criminal motivations. Under the RICO law, an individual may be liable if they have committed at least “two acts of racketeering activity.” The list includes any act involving kidnapping, acts related to mail and wire fraud, acts related to trafficking in persons, and acts related to the sexual exploitation of children.
Prince Andrew should, without doubt, be concerned about his criminal exposure in the Jeffrey Epstein scandal. The royal family may have the cash to pay off Ms. Giuffre, but he is likely ill-equipped for life behind bars. Such a high-stakes situation makes it even more curious that a person in his position would consent to a public, wide-ranging interview on a national channel.
Possible Civil Charges
An individual such as Prince Andrew who has been accused of sexual assault can generally be sued in civil court, but in this case the Statute of Limitations may have expired.
In September 2019, however, the New York governor signed legislation extending the limitations period for rape to ten years.
Setting aside the Statute of Limitations considerations, Prince Andrew ordinarily could have been sued in civil court for monetary damages for a host of reasons, including assault and battery, sexual assault, offensive physical contact, conspiracy, false imprisonment, and private nuisance.
Can Prince Andrew Countersue Virginia Roberts Giuffre?
Prince Andrew has said that the sexual assault allegations made by Virginia Roberts Giuffre against him are false. So does he have cause for a civil lawsuit against Ms. Giuffre?
Surprisingly, yes.
Virginia Roberts Giuffre accused Prince Andrew of sexual assault and has done so in a manner that captured international attention.
Assuming the unbelievable—that Prince Andrew is telling the truth and Virginia Giuffre is lying—Virginia Giuffre would be liable for defamation per se.
Defamation per se is the legal doctrine that some statements are so inherently defamatory that a victim’s reputation is presumed to be damaged.
A person cannot be liable for defamation per se if they are telling the truth, which is one of the many reasons why Prince Andrew would never seek to sue Virginia Giuffre under this law. Doing so would invite an investigation into Prince Andrew’s conduct and credibility, which is the last thing he would want. Nevertheless, such an option is open to Prince Andrew based on his adamant denials.
Legal Lessons learned in Prince Andrew interview
There is no question that Prince Andrew’s BBC Newsnight interview was, at best, a PR disaster of epic proportions. Royal publicist, Jason Stein, even resigned from his position rather than to face the predictable public outcry that was sure to follow.
Many believe that Prince Andrew’s rank and status as British Royalty offers him complete immunity to the US justice system; however, that simply is not true. It remains to be seen if the US Department of Justice demands Prince Andrew’s extradition and whether the UK agrees to the demands; however, public pressure can go a long way to influence diplomatic decisions. Prince Andrew’s highly public, televised interview will play a significant role in this.
There are also a number of extremely valuable legal lessons that you can learn from Prince Andrew’s interview if you ever find yourself as a Defendant in a criminal or civil lawsuit:
The definition of success for a District Attorney (i.e. Criminal Prosecutor) cannot be measured by wealth; rather, it is evaluated based on size of the trials and the sentences achieved. The position of criminal prosecutor is often a stepping-stone to a high-profile public office (e.g. Rudy Giuliani, John Kerry, Rod Blagojevich, Chris Christie etc.). Moreover, high-profile victories are a distinguishing marker for any aspiring public figure, which provides insight as to why a case such as The People of the State of California v. Orenthal James (“OJ”) Simpson could last an extraordinary eight months.
Knowing that a show trial featuring Prince Andrew would serve as a resume-making case for any prosecutor, it is curious that Prince Andrew would fan-the-flames by injecting himself into the middle of this sordid affair. Prince Andrew’s strange interview was likely a hot topic around the water cooler of the Manhattan District Attorney’s office, and likely resulted in some serious questions being posed to current District Attorney Cy Vance Jr.
Prince Andrew alone is responsible for heightening the publicity of his criminal case, while simultaneously exposing the weaknesses of his testimony.
The phrase “burden of proof” is common legal phrase that delineates which side must establish enough facts to prove their case. In a criminal matter, the prosecution has the burden of proof and must convince a jury “beyond a reasonable doubt.” In a civil case, the Plaintiff owns the burden of proof, and must convince a jury by a “preponderance of the evidence” (i.e. more likely than not).
A trial is constrained in time and scope by the evidence that is relevant to the case. Once a side had put on all of their evidence, which includes documents, physical evidence, and testimony, they end their portion of the case.
In this case, Prince Andrew provided the prosecution and civil plaintiff’s lawyers with nearly an hour’s worth of relevant testimony. Through his testimony, Prince Andrew opened the door to many legal issues that might otherwise have been inadmissible. Moreover, the prosecution and civil Plaintiff’s lawyers can ask the same questions in a cross-examination and compare Prince Andrew’s answers and body-language with the answers he provided to the BBC.
Prince Andrew gave his opposition a preview of everything they should expect from him during a deposition, which enables them to conduct precise inquiries for contradicting evidence or accounts. Prince Andrew’s BBC account will later be used to question his credibility and cherry-pick his misstatements.
Prince Andrew’s interview will go down in history as one of the biggest unbelievable spectacles in monarch history. According to British news sources, a mere 6% of viewers believed Prince Andrew’s account. From a public relations perspective, such a hit to his credibility is damaging. In the legal context, such distrust can result in life behind bars.
Prince Andrew will likely be questioned under oath concerning his relationship with Jeffrey Epstein and the allegations of Virginia Giuffre. Should Prince Andrew lie under oath, he faces the crime of perjury. Should he change his story, he will be perceived as a liar. And it is certain that the questioning he will face in a legal context will present much more of a minefield.
United States citizens have a right under the Fifth Amendment of the Constitution to remain silent.
This amendment was intended to prevent an individual from forcible self-incrimination at the questioning of a powerful government. Prince Phillip—though not a U.S. Citizen—would be wise to heed the intent of the Fifth Amendment and remain silent.
Putting it mildly, Prince Andrew was less than prepared for his BBC interview. He appeared to be caught-off-guard on numerous occasions and feigned surprise on others. Considering the magnitude of this interview, such poor preparation left Prince Andrew looking sheepish and unconcerned about the circumstances of his victims.
Witness preparation is critical, particularly for an individual likely to be a party in the case. It is shocking that Prince Andrew’s lawyers allowed him to proceed with the interview without planning for every question and rehearsing every answer.
Conclusion
From a public relations perspective, there can be no doubt that this interview was a train-wreck. It was more aptly stated by Charlie Procter, who compared this interview to “[A] plane crashing into an oil tanker, causing a tsunami, triggering a nuclear explosion.”
From a legal perspective, Prince Andrew managed to step on every landmine imaginable. Prince Andrew did what no prospective Defendant should ever do: he voluntarily created evidence that will undoubtedly be used in his own prosecution in both a criminal and civil context. Prince Andrew’s consent to the BBC’s interview was the legal equivalent of draping himself with honey and kicking open a beehive.
Such consequences will appear and may prove disastrous for him. Individuals would be wise to study Prince Andrew’s actions – and then do the exact opposite. That means not inviting prosecution, refraining from creating evidence, preparing, and learning to keep your mouth shut.