By Mimi Rocah, former assistant U.S. attorney and NBC/MSNBC legal analyst
As a federal prosecutor for over 16 years, I can tell you that, aside from cases involving murder and violence, there are two categories of crimes that make a career prosecutor’s blood boil: schemes that target elderly victims for money and allegations that involve using children for sex. For six years, between 2001 and 2007, Jeffrey Epstein allegedly ran a sex trafficking ring that preyed on minor girls as young as 13. So why was he given a slap on the wrist by federal prosecutors in Florida?
Senators, both Republican and Democrat, are asking the same question. Sen. Ben Sasse, R-Neb., wrote a series of letters to the Department of Justice last week, calling for the DOJ’s inspector general to review the handling of the case as well as for a congressional review of the “decision-making” process. Sasse is right to demand answers here, because while the criminal case has been resolved, many questions remain.
Sasse is right to demand answers here, because while the criminal case has been resolved, many questions remain.
According to extensive reporting by the Miami Herald, Epstein recruited, manipulated and lured at least 80 girls to his mansion in Palm Beach, Florida and elsewhere, then sexually abused them, often by asking them for “massages.” In reality, these girls were paid to be victims of his sexual assault, molestation and rape. Epstein even photographed the girls in some cases — a possible separate crime of production of child pornography. Epstein also allegedly turned some of the girls into unwilling co-conspirators who helped him recruit and deceive other victims. A well-connected millionaire, Epstein was often seen in the company of men like Prince Andrew, Bill Clinton, Alan Dershowitz and Donald Trump. (Dershowitz told Axios he still provides legal advice to Epstein.)
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The case was investigated and initially pursued by the United States Attorney’s Office in the Southern District of Florida (SDFL), headed by Alex Acosta, the current Secretary of Labor. However, instead of pursuing the case, the SDFL entered into what is known as a non-prosecution agreement (NPA) with Epstein in which they agreed that the federal investigation (against Epstein and anyone else who may have been a subject of it) would cease and Epstein would plead guilty to certain state charges for which he would serve 18 months in prison and register as a sex offender. In addition, the SDFL agreed to give Epstein’s attorneys a list of “individuals it has identified as victims.” In short, this was a shockingly lenient deal for a crime of such magnitude.
I was involved in many sex-trafficking and sexual exploitation cases involving minors as a federal prosecutor. These cases usually involved one or two victims but were charged under the very same statutes that documents show federal prosecutors were planning to use in Epstein’s case, including: sex trafficking of a child under 18 (18 U.S.C. § 1591); conspiring or causing or traveling in interstate commerce for the purpose of engaging in sex with a minor (18 U.S.C. § 2423(a)); and enticing or coercing a child under 18 to engage in prostitution (including attempt) (18 U.S.C. § 2422(b)); and a statute that likely could have applied here but wasn’t even mentioned in available documents, production of child pornography (18 U.S.C. § 2255). Individuals charged under these federal statutes, in my experience, were typically subject to strict mandatory minimums of 10 or 15 years in prison, per count, and those counts were often stacked one on top of the other.
Congress has passed stringent laws for sex trafficking and sexual exploitation of minors because these are heinous crimes. Epstein, however, was able to escape this punishment, despite alleged crimes that by all accounts were indeed heinous. Let me preface what follows by saying this: As a former prosecutor, I am reluctant to pass judgment on the decisions of other fellow prosecutors’ decisions without the benefit of all of the facts. However, the known facts in this case cry out for an official, thorough inquiry.
In my experience, allowing the target of an investigation of this nature to plead guilty to anything less than the applicable mandatory minimums would have only been allowed a few specific circumstances, like when the evidence against the target was weak or questionable or when victims did not want to come forward or testify or when there was some other strong mitigating factor such as mental incapacity of the target. Based on reporting thus far, none of these circumstances appear to have been factors here. There was some indication that Epstein had provided unspecified cooperation in exchange for such lenient treatment. But I can think of only two examples, in my experience, of a sexual predator of Epstein’s magnitude being allowed to cooperate in exchange for leniency. And, in those cases, the cooperation was extremely unique and substantial. Was that the case here?
In addition, in my experience, many different supervisory attorneys would be involved in a decision to allow a defendant like Epstein to receive a “break” like this. Such discussions and decisions would be made following meetings with defense counsel and all relevant personnel from the U.S. attorney’s office together discussing the different equities. In Epstein’s case, the U.S. attorney at the time, Acosta, was directly and personally involved in these negotiations, including through having meetings with former colleagues about the case at off-site locations without the case attorneys involved. That seems highly irregular in and of itself.
And what about the rights of the victims? Why were the identities of minor victims turned over to Epstein’s attorneys? In my experience, my office fought to protect the identities of victims especially in cases involving sexual abuse. In a case like this, prosecutors should keep victims of such crimes apprised, pursuant to the Crime Victims’ Rights Act, 18 USC §377. Here, the victims were apparently deliberately kept in the dark about the plea deal until it was too late. The SDFL has reportedly said that, because the case was not yet charged, there were no identifiable victims under the Victims’ Rights Act. This explanation rings completely hollow.
The non-prosecution agreement itself describes “individuals identified as victims,” albeit for different purposes. And the VRA defines a “victim” as a “person directly and proximately harmed as a result of the commission of a Federal offense.” If Epstein could have been charged with the offense and the victims were known, they were harmed and should have been notified. What was the real reason that they weren’t? Why were the identities of minor victims turned over to Epstein’s attorneys? We fought to protect the identities of victims especially in cases involving sexual abuse.
Finally, the government’s agreement to suspend and hold in abeyance any grand jury investigation for other people potentially involved in these crimes is simply baffling. In my experience, prosecutors and investigating agents would have looked for every way possible to advance a case of this type, which means seeking out co-conspirators and enablers. Why was that opportunity surrendered here?
All of these questions are now best answered by the DOJ’s Office of the Inspector General and a formal investigation and inquiry should begin immediately. Cases like Epstein’s don’t just hurt the victims, they undermine the legitimacy of the entire justice system.
Mimi Rocah, currently a Distinguished Criminal Justice Fellow at Pace University Law School, served as an assistant U.S. attorney for the Southern District of New York from 2001 to 2017. Rocah is an NBC and MSNBC legal analyst.