Jeffrey Epstein's new charges are a direct rebuke to Alex Acosta — no matter what Acosta says

The DOJ is taking a welcome stand against influence peddlers who have long attempted to use their status to undermine justice. But what about the prosecutors who enable them?
Image: Alex Acosta
Labor Secretary Alex Acosta speaks at the Department of Labor on July 10, 2019, in Washington.Alex Brandon / AP
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

Update (July 12, 10:00 a.m. ET): This piece has been updated throughout to reflect the resignation of Labor Secretary Alex Acosta.

Criminal sex trafficking charges have been brought anew against Jeffrey Epstein, a very wealthy, very well-connected convicted sex offender, for crimes he allegedly committed in Florida and New York from 2002 through 2005. Back in Florida, then-U.S. Attorney for the Southern District of Florida Alex Acosta bestowed upon Epstein a non-prosecution agreement the likes of which I've never seen in my decades as a federal prosecutor. The agreement was startling for several reasons, particularly in its unorthodox commitment to protecting the alleged perpetrator instead of the victims.

President Donald Trump stood by the embattled Acosta several days. But Democrats throughout Congress repeatedly called on Acosta to resign given the new information about Epstein’s case. The chorus grew loud enough that Acosta was forced to defend himself Wednesday at a press conference. "Times have changed, and coverage of this case has certainly changed," Acosta said, noting, "the facts are being overlooked."

What facts specifically Acosta thinks have been overlooked remain unclear. What seems more clear, however, is how deeply disturbed the Department of Justice must have found the original circumstances of Epstein’s Florida prosecution.

What facts specifically Acosta thinks had been overlooked remain unclear, however. What seems more clear, is how deeply disturbed the Department of Justice must have found the original circumstances of Epstein’s Florida prosecution. The DOJ is taking a strong and welcome stand against sex traffickers — as well as the kinds of influence that have long been wielded to shield men such as Epstein (and Harvey Weinstein, for that matter) from justice.

Further, the DOJ’s move is a strong rebuke of Acosta himself, no matter what he tries to say about changing social mores or his role in the original agreement. Epstein’s alleged crimes are horrific, but by trying to hide those crimes from victims, Acosta too may have violated the law.

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With pressure building, Trump announced on Friday that Acosta would resign. (The president continued to praise Acosta, however, calling him a "tremendous talent.")

Acosta's resignation is more than fair. I challenge any prosecutor to read Epstein's non-prosecution agreement and defend it as an appropriate exercise of prosecutorial discretion. Rather, it is an example of prosecutorial abuse (barely) hiding in plain sight.

In the mid-2000s, Epstein was investigated by both the FBI and the Florida state authorities for the possible sex trafficking of underage girls and related offenses. The federal investigation culminated in a 53-page draft federal indictment. However, rather than bring those federal charges against Epstein, Acosta agreed to forgo prosecuting Epstein federally in favor of letting him plead guilty to a state charge of solicitation of prostitution. His sentence in Florida included work release, meaning that Epstein slept in the Palm Beach County Jail but was out and about for 12 hours a day. This was less a jail sentence and more inconvenient sublet.

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The non-prosecution agreement is unlike any I ever encountered as a career federal prosecutor. For example, it provides that, after Epstein has been sentenced in the state case, the United States will provide a list of all victims to Epstein’s lawyers, will select a lawyer for each victim (subject to the approval of Epstein’s legal team) and Epstein will pay for those lawyers. The agreement continues that if any of the victims bring suit, Epstein “waives the right to contest liability.” In other words, he agrees to pay them off without the risk that his conduct will be made public via a civil lawsuit. Acosta helpfully includes that this doesn’t mean Epstein is guilty of anything or did anything wrong (“not to be construed as an admission of civil or criminal liability”). Indeed, the agreement reads as if it were drafted by an Epstein public relations representative.

Acosta then agrees to hide the non-prosecution agreement from public view and, “if the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement” the United States will provide notice to Epstein before making that disclosure. Perhaps to give Epstein enough time to fuel his private jet and head off to a country from which he can’t be extradited back to the U.S.?

Acosta goes on to give several of Epstein’s co-conspirators a walk as well: “The United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to [emphasis mine] Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova.” I can’t even fathom what it means that immunity was extended to other, unnamed co-conspirators in this way. Moreover, it is extremely unusual — not to mention wildly inappropriate — to give immunity to blocks of people, named and unnamed, in the non-prosecution agreement for a single defendant. None of this adds up, at least not as viewed through the prism of normal prosecutorial practices and rules of ethics.

As if all this governmental ugliness was not enough, Acosta was caught red-handed hiding all this information from the victims of Epstein’s crimes.

As if all this governmental ugliness was not enough, Acosta was caught red-handed hiding all this information from the victims of Epstein’s crimes. The federal Crime Victims' Rights Act (CVRA), 18 United States Code section 3771(a)(9), provides that crime victims have “the right to be informed in a timely manner of any plea bargain or deferred prosecution agreement.” Thanks to some extraordinary reporting by Julie K. Brown of the Miami Herald back in November of 2018, the public learned that Acosta hid the agreement from the victims. In a letter, one of Epstein’s attorneys, Jay Lefkowitz, thanked Acosta for his commitment not to contact “any of the identified individuals, potential witnesses or potential civil claimants” against Epstein. Lefkowitz might as well have thanked Acosta for violating the federal Crime Victims’ Rights Act. Indeed, in February of 2019 a federal judge ruled that Acosta’s office broke that law by failing to keep victims informed about the agreement struck with Epstein.

Epstein’s current lawyers will almost certainly argue that the earlier non-prosecution agreement bars the new charges brought by the SDNY. Time will tell whether that argument will be persuasive to the assigned New York federal court judge.

Remarkably, the Department of Justice has completely flipped on the question of prosecuting Epstein for crimes he committed in the mid-2000s. Although there are 94 U.S. attorney's offices, they are simply field offices under the direct control of the DOJ. In 2007, DOJ (through Acosta) announced that Epstein would not be prosecuted for the crimes he committed from 2002 though 2007. In 2019, the DOJ announced, now through U.S. Attorney Jeffrey Berman in New York, that it has changed course. This is a clear indication that the DOJ is trying to make right what Acosta got wrong more than a decade ago.

During a press conference announcing the new charges against Epstein, Berman, a Trump appointee, delivered what seemed like a direct rebuke of the way Acosta cut the victims out of the process. In announcing the Epstein indictment, Berman stated, “every victim must be heard.” This is an important pronouncement given the tortured history of the case. For the sake of what is described in the Epstein indictment of “dozens of minor girls,” let’s hope that the voices of the victims are finally recognized.