Jeffrey Epstein Arrested; Constitution Tested (Update)

The allegations are awful, using underage homeless girls as sex slaves. The bold-faced names like Prince Andrew, Bill Clinton and Dersh, are salacious. Even the federal prosecutor, Alex Acosta, then United States Attorney for Southern District of Florida, is now Secretary of Labor under Trump. There is no quarter for billionaire Jeffrey Epstein, who was arrested as his private plane arrived at Teterboro Airport on a sealed indictment from the Southern District of New York.

That makes this the perfect case to do the damage.

Who would be so disgusting as to come to Epstein’s defense, which by current definition means that one approves of his conduct, every allegation of which must be taken as true. Everybody knows it, as the current right to believe, combined with the duty to believe, makes his guilt beyond question.

Aside from Dersh, who has vehemently denied that he was party to these crimes and called the once-girls, now women, liars, it’s not as if anybody was there to assert that it didn’t happen. Of course, Dersh’s denials also serve his self interest. Buckingham Palace also denied the allegation about Prince Andrew, but he’s generally left out of the story since he’s not hated. Where Epstein’s relationship with Bill Clinton and Trump falls remains to be seen.

There is far more to be gained by holding Epstein out as the epitome of the corruption of the rich, the powerful, the male. To the extent Acosta might be accorded any presumption of regularity in reaching a non-prosecution agreement with Epstein so that he could be locally prosecuted, get a sweet deal of 13 months in the Palm Beach County jail, but spending six days a week serving his sentence in his office, he blew his cred by taking a position with Trump.

And the Acosta deal bears all the hallmarks of a sweetheart deal, the kind only uber-connected billionaires receive. The claim that Epstein cooperated against Bear Sterns appears dubious. There was talk that the non-prosecution agreement came as a result of the outlandish claims of the “victims,” as well as inconsistent and contradictory statements, which was likely to produce an acquittal if Epstein was taken to trial. Plus, a lot of important but unindicted people’s names would have been uttered from the witness stand, smearing them in the process.

So the die was cast: the deal was signed, the plea was entered and the sentence served. And yet, it’s back.

It’s not that there is an iota of sympathy for this poor billionaire. Reports raise no doubts about the claims of his “victims” and no one is trying to justify Alex Acosta’s agreement not to federally prosecute Jeffrey Epstein. That’s what makes this the perfect case to do extreme damage.

How, as someone willing to invoke the ire and outrage of every decent person of empathy, is it possible that the Southern District of New York has arrested a defendant who was given a non-prosecution agreement by the Southern District of Florida? There’s no dual sovereignty issue; both are arms of the feds. Acosta’s exercise of discretion was improper favoritism, unjustified, disgusting? So what? He had the lawful authority to cut the deal as United States Attorney, and his motivations are no more subject to post-hoc review than the purpose of any federal prosecutor who chooses to take a plea for one kilo of coke rather than one thousand.

The only apparent crack here is the ruling of Judge Kenneth Marra last February.

The agreement not to pursue federal sex trafficking charges, negotiated in secret while prosecutors told victims that a case against Mr. Epstein was still possible, violated the federal Crime Victims’ Rights Act, ruled Judge Kenneth A. Marra of Federal District Court in West Palm Beach, Fla. He gave the government and the two victims who sued 15 days to discuss what remedy should apply in the case.

To date, Judge Marra has not, as far as anyone knows, fixed a remedy for this violation of the CVRA, as the 15 days have continued to be extended. As the United States Attorneys office for the Southern District of Florida has recused itself, the case is being handled by Byung Pak out of the Northern District of Georgia. In an editorial, the Sun-Sentinel isn’t pleased about Pak’s position.

The U.S. attorney for the northern district of Georgia claimed last week that even though prosecutors in South Florida broke the law when they approved an outrageously light sentence for Epstein, the deal must stand. Byung Pak may not actually be on Epstein’s legal team, but he has placed the Department of Justice on Epstein’s side.

But the fact that the government’s argument ends up helping Epstein’s side doesn’t mean Pak’s “not actually but actually” on Epstein’s defense team, despite the trend to make the shallowest possible assumption that no one would take a position that aids Epstein unless he was an Epstein ally or apologist.

At risk here is that a deal made in a criminal prosecution with a defendant might be undone, such that the defendant be prosecuted despite the deal, because of a CVRA violation. The ability to make a deal in a criminal case with the government implicates a host of constitutional protections, from double jeopardy to due process, all of which inform the defense that they can rely on the deal cut. It’s a done deal.

In contrast, the CVRA came into fashion as a palliative for victims, some of whom are deeply sympathetic as here, and others not the slightest bit sympathetic. The rhetoric of “rights” for victims was easy to muster, as who doesn’t feel badly for victims? But they have no constitutional rights. Indeed, they have nothing more to do with a criminal prosecution than any other witness to a crime. Well, at least until Congress enacted the CVRA.

The failure of Acosta’s office to comply with the CVRA is significant, if for no other reason than that it’s the law and the government should comply with the law. But the remedy for the failure should be imposed on the government, not the defendant for whom there is no duty under the CVRA. That could all change with this case, because nobody will cry a tear for Jeffrey Epstein, making him the perfect foil to undermine a plethora of constitutional rights and interests which will be used some other day against defendants whose names no one knows.

Update: Mark Bennett has kindly dug up a copy of the Epstein NPA. The typical language in an agreement includes:

Defendant agrees that this plea agreement binds only the United States Attorney for the __________ District of __________ and defendant; it does not bind any other United States Attorney or any other unit of the Department of Justice;

Notably, this language doesn’t appear in the NPA, although there is language the refers to prosecution in the Southern District of Florida, which might suggest it doesn’t bind New York, and the DoJ Manual provides that agreements in one district should not bind others without their agreement.

46 thoughts on “Jeffrey Epstein Arrested; Constitution Tested (Update)

  1. Clark Neily

    I’ve been wondering why the NPA doesn’t prevent the latest prosecution. Do you think DOJ’s theory will be that Epstein, through counsel, conspired with DOJ to violate the CVRA and the NPA is therefore invalid somehow? If so, that would seem to raise the question as to whose hands are the most unclean in all of this, Epstein’s or DOJ’s. Now THERE’S a contest.

    Reply
    1. SHG Post author

      While I’m disinclined to engage in speculation like this, which may be the path taken or may have nothing to do with the SDNY argument, there is a pretty clear answer: It’s the job, and duty, of defense counsel to “conspire” with the government to do anything possible to zealously represent the defendant and achieve the best possible outcome. We are always trying to “conspire” to get our client’s off. That’s not a flaw, but a feature of the defense. Those aren’t “unclean hands,” but masterful hands. That’s our job.

      Reply
      1. Clark Neily

        Seems to me this overstates the case. One could imagine the prosecution insisting that defense counsel lie to the judge about some key aspect of the investigation/plea negotiations in order to help ensure the judge accepts the proposed plea agreement. Defense counsel has no professional obligation to accede to that demand and in fact has a professional obligation to refuse it. (Whether counsel has a moral obligation that conflicts with his professional obligation is of course a separate question.) Based on your prior comments here I feel pretty confident that you would not violate your duty of confidentiality to former Client 1 in order to help current Client 2. If so, then in fact there are limits on what defense counsel should do to zealously represent his client. I would say that conspiring with the prosecution to violate federal law might well be one of those things, but I also recognize this is a murky area and YMMV.

        Reply
        1. SHG Post author

          One can imagine space aliens. I’ll leave it to others with more vivid imaginations, and remind you that the duty of defense counsel is to zealously represent his client within the bounds of the law. Absent proof of the involvement of space aliens, I’m not going to imagine they’re involved.

          Reply
  2. Bear

    Constitutional protections should apply to “deplorables.” Even if everyone agrees who that is. I’m not an attorney but I think that is essential.

    Reply
  3. KS

    lt seems to me that the question is whether Acosta had the real or apparent authority to enter into that agreement. The CVRA is there for a reason, and Acosta’s failure to comply with its mandate should void the agreement.

    lt’s not as if Epstein’s lawyers weren’t aware of this. l’d take the deal and run like hell, too. But Federalist #78 speaks to this:

    “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

    No crisis. The agreement is void.

    Reply
      1. B. McLeod

        Where the strings in the books can’t be pulled and persuaded,
        And even the nobles are properly handled,
        Once that the cops have chased after ’em and caught ’em,
        And the ladder of the law has no top and no bottom . . .

        Reply
    1. Onlymom

      Nice but you destroyed your own case. Ladt time i looked the constitution says nothing about the “so-called victims rights” but it has a hell of a lot to say about the rights of defendants. Law does not trump constitution.
      If the politicians really wanted to create victim’s rights then should have gotten of their lazy butts and done their job legally via constitutional amendment.

      The legal contract between him and the state stands ands this new shot at him is illegal and he has the legal right to sue the government for what little real monry they have left

      Reply
    2. Ahaz

      Though I’m not a lawyer and did not stay in a Holiday Inn Express, I’m not sure the CVRA allows victim input into criminal sentencing. They may be present but the act of sentencing is between the government and the accused. If I’m correct in that assertion, compliance or non compliance with the Act should be irrelevant. Seems to me.

      Reply
      1. SHG Post author

        It entitled a victim to make an impact statement and, thus, inform the judge of the impact of the crime in advance of sentencing. What the judge does with that information, however, is entirely up to the judge.

        Reply
  4. Hunting Guy

    Intellectually I know that he deserves the best defense possible and that he is innocent until proven guilty.

    Emotionally, I say have a trial, take him out behind the courthouse, shoot him in the head, then throw his body into the dumpster.

    I hope intellect wins out but it’s hard when children are involved.

    Reply
    1. SHG Post author

      That’s why there are mean-ass lawyers like me around, to remind people that the same emotions they feel this time are the ones other people feel when they don’t despise the deft quite so much.

      Reply
    2. B. McLeod

      Like physically real children, as opposed to the pictures of children for which people routinely go to Club Fed for long stretches. That is one of the reasons this disposition has been such a considerable problem for the feds (and why it should be). This thing stinks, stank and has stunk from the time it rolled out the chute. Whether the ultimate result for Epstein is or isn’t different, there is a systemic issue here that is glaring, because the case highlights the postulate that our country has one law for the rich and politically-connected, but another for the poor and marginalized.

      Reply
  5. Richard Kopf

    SHG,

    This is entirely off the cuff and should be read as such.

    The plea agreement is valid insofar as the defendant is concerned. Period.

    By shifting the dates of the conspiracy to an earlier time frame and perhaps changing the theory but not the essence of the crime, SDNY seems to think it can get by a double jeopardy issue and a whole lot of other defenses. And, by the way, unless SDNY got permission from the top echelons of Main Justice to seek the indictment they have run amuck. If they did get permission, then Main Justice has run amok.

    Back in the day, we used to say and truly believe “a deal is a deal.” And we did so even when the agreement–a plea agreement or otherwise–came back to bite us in the butt. I wish someone (like Main Justice) other than the poor AUSA from Georgia who got assigned to handle the Florida case would say so. This holds true in my view for the nascent NY case.

    Honor, and cutting square corners, should be hallmark of federal prosecutors even though they may have screwed up on the CVRA requirement and even though there will be hell to pay for a cabinet official and others.

    All the best.

    RGK

    Reply
    1. Mark Bennett

      I don’t see a jeopardy issue. No jury was sworn; no witness was sworn. The plea agreement was in the court of a “separate sovereign.” Jeopardy never attached in federal court. What am I missing?

      Reply
        1. SHG Post author

          I waited, since Bennett asked of Judge Kopf and not me (because who gives a damn what I think, amirite?), for Judge Kopf to respond. But now it’s my turn. The NPA included as an express requirement that Epstein plead guilty to a state crime and agree not to challenge its sentence as a requirement of the feds foregoing separate prosecution. By making that a requirement, the feds adopted, and compelled, the state crime, plea and sentence, and Epstein not only agreed, but performed his duty by pleading and serving his sentence.

          Does this suffice as federal jeopardy, even if exercised by the state, when it’s mandated by the feds and performed by the defendant? I would argue it does, and that federal jeopardy has attached.

          Reply
          1. Richard Kopf

            SHG,

            I thought of that argument too Scott. I would certainly make it, but I wonder whether there is precedent for it. It might be easier to argue a violation of Due Process based on “contract” principles.

            Santobello v. New York holds that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. 257, 262 (1971); see also Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978) (“[A] prosecutor’s plea-bargaining promise must be kept.”). Santobello stands for the proposition that “a criminal defendant has a due process right to enforce the terms of his plea agreement.” Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc)

            All the best.

            RGK

            Reply
            1. SHG Post author

              The reason I went double jeopardy rather than Santobello was that it’s always better to go constitutional violation than the due process via contractual breach. There’s always Santobello as a back up. I’m just not ready to give double jeopardy away.

          2. Sol Wisenberg

            It is probably the best argument Epstein has, and it is a pretty good one. The federal NPA also allowed a group of Epstein’s victims to sue under 18 U.S.C. Section 2255, and that statute only applies to victims of federal crimes. One can argue that it all constitutes federal action brigaded with state action, to steal an old free speech exception doctrine. I could see a court carving out an exception to Gamble under these circumstances.

            Reply
            1. losingtrader

              Hi cuz !
              What, everyone’s embarrassed for Sol that he’s my cousin?
              That’s why I don’t use my real name.
              BTW does Epstein own a pizza parlor?

  6. MGould

    According to the NY Times, the SDNY indictment is under seal. Do we know for certain that the alleged conduct there covers the same ground as the conduct covered by the Florida NPA? Presumably the NPA wouldn’t give him a free pass for subsequent criminal conduct.

    Reply
  7. Pingback: Jeffrey Epstein’s Forlorn Hope – Defending People

  8. Pedantic Grammar Police

    I was pretty pissed when I heard about Epstein skating. It seemed pretty clear that he had used his wealth and connections to corrupt the system. Prohibiting prosecution of “any potential co-conspirators” is just icing on the cake. Anyone who had sex with his underage girls gets a free pass.

    What can be done now? Will they allow his corrupt deal to stand, or will they further dilute the rights of all criminal defendants? There isn’t a good solution.

    Reply
  9. Sol Wisenberg

    Let me say this about that. I’ve been boning up on the case for a good chunk of the afternoon. 1. The NPA is unambiguous enough on its face, regarding which DOJ unit is bound by it, to allow SDNY to proceed with charges even if those charges appear to fall within the contours of the NPA. 2. This analysis holds true even if Judge Marra is incorrect in his ruling that SDFLA prosecutors violated the CVRA. 3. Correspondence docketed in the federal CVRA case brought by the two Jane Does establishes that Epstein’s attorneys were keenly aware of the CVRA and its provisions re notice to victims. This awareness probably explains their decision at the last minute to ask for a stand-alone federal NPA, rather than an NPA plus federal obstruction plea, as a plea would have unequivocally triggered NPA’s notice and confer provisions. 3. Epstein’s lawyers didn’t want any victims notified of anything, and pressured SDFLA prosecutors on this point repeatedly. 4. So, for what it is worth, Epstein’s lawyers knew of the risks entailed if SDFLA violated CVRA’s provisions.

    Reply
    1. SHG Post author

      A few oblique references, and the absence of the usual language, is a thin reed to allow multiple districts of the same sovereign to prosecute the same person for the same offense. kinda makes it impossible for a deft to resolve a case, knowing that there could be another district in the wings to take the next swing. Then again, a thin reed is all that’s needed if a judge wants to hold for the govt, and what judge doesn’t?

      But as for the defense knowing about the CVRA violation, so what? Where does the CVRA change the Sixth Amendment’s right to counsel, or counsel’s duty to zealously defend his client? It’s not the defense’s job to make sure the govt complies with laws for the benefit of third parties, and there is no remedy for a CVRA violation that alters the deft’s constitutional rights.

      In any eve, one way or another. we’ll find out soon enough.

      Reply
    2. Richard Kopf

      Sol,

      I reread the NPA and I see where you are coming from–the “Therefore” paragraph, at page 2, in particular. However,I was surprised the NPA did not contain the standard language about binding only the local USA and not other USAs in other districts. Since the indictment in New York is partially but explicitly based on the defendant’s actions in Florida (see, for example, paragraphs 14-19 and 22(f) (overt act) of the indictment) and the time frame seems to be similar to the Florida allegations Epstein may have a shot at blowing up the New York charges or at least limiting them to the New York allegations.

      All the best.

      RGK

      Reply
      1. Sol Wisenberg

        Judge,

        He’s got a shot, but you know what they say about hard cases and bad law. It was obviously a sleazy business, from the prosecution side, intended to bamboozle the victims. I don’t fault defense counsel at all. They have an ethical duty to get the best deal they can, as long as they do so legally and ethically.

        Sol

        Reply
          1. Sol Wisenberg

            My guess is that they did get Main Justice’s approval. (In fact, it would not surprise me if they were directed by the very highest level to file a case.) The alternative scenario assumes a level of reckless Machiavellian bravado that would be too much for even the SDNY.

            Reply
            1. SHG Post author

              But did Acosta get approval from Main Justice for an NPA without the standard language? Not that it should matter to the defense.

  10. B. McLeod

    He is a billionaire, and can afford the very best of lawyers. Surely they will raise all of these issues and the wise judges in our courts will take due notice and (with the help of their talented research clerks) come to an appropriate decision.

    Reply
  11. Christenson

    On its plain terms, why couldn’t these Feds arrest for *new* crimes?? Skeevy… just Skeevy….still!

    Then there’s the civil asset forfeiture petition… I’d sure hope they’d need to show that the house was used exclusively *for the purpose of* the (convicted crime), not just an incidental trapping.

    Reply
    1. SHG Post author

      A rather cynical view is that this new indictment is framed for the sake of forfeiture, even if the prosecution fails.

      Reply

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