the law

Acosta’s Legal Explanation for Epstein’s Plea Deal Doesn’t Add Up

Labor Secretary Alex Acosta at Wednesday’s press conference. Photo: ANDREW_HARRER/Bloomberg via Getty Images

From a legal perspective, Labor Secretary Alexander Acosta’s explanation of what occurred in the 2007 criminal case against Jeffrey Epstein was woefully inadequate. That was apparent even before a state prosecutor accused Acosta of attempting to “rewrite history.”

Acosta, who formerly served as Miami U.S. Attorney, addressed the press Wednesday in an effort to quell the controversy surrounding the non-prosecution agreement he struck with Epstein in 2007 to resolve allegations of sex trafficking. The case received new public attention recently due to investigative reporting by the Miami Herald and new federal charges filed Monday in the Southern District of New York that encompass the conduct that was the basis for the Florida case.

As a former U.S. Attorney, I am ordinarily reluctant to second-guess the decisions of other prosecutors. Sex-trafficking cases can be particularly sensitive and complex, so sometimes a case is resolved with a lesser sentence to avoid risking an uncertain outcome and retraumatizing the victims.

When Acosta addressed the press to explain the non-prosecution agreement with Epstein, I was expecting to hear him describe evidentiary problems, witness issues, or other case-related concerns that caused him to agree to an 18-month sentence, which ultimately resulted in Epstein serving 13 months, most of it at his own office on work release. Instead, we heard excuses and blame-shifting. Acosta’s explanation was lacking in three key areas.

First, he suggested that state prosecutors were to blame for his actions. He said that the Palm Beach County Prosecutor was prepared to allow Epstein to plead guilty to soliciting prostitution charges that would have brought no jail time whatsoever before Acosta intervened to stop it. Instead, the parties agreed that Epstein would plead guilty to a single count of soliciting a prostitute, serve an 18-month custodial sentence, register as a sex offender, and pay restitution to his victims.

But what Acosta did not explain is why he thought such a global resolution was necessary. Acosta was not bound by any decisions made by the state prosecutor. He could have allowed the state prosecutor to do whatever he wanted with the state case and still pursued his own separate federal charges. Sometimes prosecutors work cooperatively with state prosecutors to work out a global resolution when it is in their clients’ mutual interest, but it is certainly not required. In this instance, Epstein faced significantly longer prison time for his alleged violations of federal sex-trafficking laws. So why did Acosta feel the need to end his own investigation to secure a custodial sentence in the state case, rather than allowing the state case to proceed and pursuing his own case separately?

Shortly after the press conference, former Palm Beach County Prosecutor Barry Krischer issued a statement on Twitter refuting Acosta’s version of the facts. According to Krischer, the evidence in the state case was sufficient only for the prostitution count. The U.S. Attorney’s Office had a separate investigation, which resulted in a 53-page indictment that was “abandoned after secret negotiations between Mr. Epstein’s lawyers and Mr. Acosta.” Krischer further stated that his office was not involved in the negotiations that resulted in the federal non-prosecution agreement or the “confidentiality arrangement that kept everything hidden from the victims.” He noted that regardless of the outcome of the state case, the U.S. Attorney’s Office always “had the ability to file its own federal charges.”

It is difficult to determine whose recollection is accurate, but Krischer is correct that Acosta did not need to “rescue” the state case. He could have simply ignored it and filed his own. His account doesn’t quite add up.

Second, Acosta failed to adequately explain why the agreement was kept a secret from the victims. A federal court found that the U.S. Attorney’s Office not only failed to tell the victims about the deal — in violation of the federal crime-victim law — but that the office deliberately misled the victims into believing that federal charges were still possible many months after the agreement was signed. When asked at the press conference about concealing the truth from the victims, Acosta offered a tortured explanation that if the agreement fell through and the case went to trial, he did not want to compromise the credibility of the victims as witnesses, presumably because they could be portrayed on cross-examination as biased against him because he had failed to fulfill his promise to pay them. But the credibility of victims can be attacked in any case where they stand to receive restitution upon conviction. Moreover, this concern does not outweigh the need to comply with the crime-victims law. The logic of Acosta’s explanation falls short here, too.

Third, Acosta did not give a satisfactory explanation for a provision in the agreement that federal prosecutors would not charge Epstein’s co-conspirators. Acosta stated that this provision was included because their focus was on the “top player.” The agreement lists by name some of Epstein’s employees, whom the U.S. Attorney agreed not to charge, but the agreement went on to include “any potential co-conspirators,” a description that could include anyone. The open-ended description prevented prosecution of Epstein’s individual employees, to be sure, but also prevented charges against anyone else who conspired with Epstein, no matter how egregious their conduct.

Acosta fielded numerous questions in an apparent effort to seem transparent, but to me, his efforts backfired because his answers seemed less than forthcoming. It is hard to know the real reason for this plea deal. Acosta has said that defense attorneys threatened to harm the reputations of his prosecutors by digging up personal information about them. If so, the best response would not have been to succumb to such tactics, but to report them to the court or investigate them for obstruction of justice. Was Acosta intimidated by a well-funded and high-powered defendant? Was he simply out-lawyered? Or is there some more nefarious reason behind his actions?

The DOJ Office of Professional Responsibility is investigating the handling of the case, and prosecutors in the Southern District of New York will be presenting evidence about the conduct that was the subject of the agreement. I am confident that one or both of those efforts will reveal the truth.

Acosta’s Explanation for Epstein’s Plea Deal Doesn’t Add Up