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.