Alex Acosta did a bad job on the Jeffrey Epstein case. This column was nearly finished when news broke Friday that he would resign as labor secretary. I was going to argue that his lapses did not justify joining the nakedly political mau-mauing by Democrats who have no interest in exploring the behavior of Democrats who are neck-deep in a monstrous pedophile’s activities. My friend Jennifer Braceras has ably addressed that point in a Washington Examiner column. I was also going to add that I’d shed no tears if President Trump forced Acosta out — easy for me to say, since I think (a) he should never have been nominated in the first place, and (b) his commitment to Trump’s deregulation agenda has never been sufficiently ardent.
Under the circumstances, I’ll spare you a few hundred words of critique on Acosta’s indecorous performance. Instead, to cut to the chase, I do not believe we can yet total up the wages of the sweetheart deal he cut for Epstein while he was U.S. attorney for the Southern District of Florida (SD-Florida). The commentariat is glibly assuming the courts will give the feds a second bite at the apple by allowing the U.S. attorney for the Southern District of New York (SDNY) to prosecute the charges that Acosta forfeited. I don’t think so.
On Monday, Geoffrey Berman, the U.S. attorney for the Southern District of New York, announced that his office has now charged Epstein. While the SDNY indictment may be new, Epstein’s crimes are not. They are the same offenses from which Acosta agreed to spare Epstein from federal prosecution if he pled guilty to state prostitution charges — which Epstein proceeded to do, in reliance on Acosta’s commitment. There is thus a very good chance, based on the Constitution’s guarantee against double jeopardy, that the SDNY case against Epstein will be voided by the SD-Florida non-prosecution agreement (non-pros).
To be sure, the SDNY has a counterargument, and it will be vigorously made. It has two components. First, there is language in the non-pros that appears to limit the agreement to SD-Florida, to wit: “prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida” (emphasis added). Here, “deferred” effectively means forfeited — the same effect for double-jeopardy purposes as a conviction or acquittal — because of Epstein’s compliance with the requirement that he plead guilty in the state case. Second, there is jurisprudence in the Second Circuit (which controls in the SDNY) holding that one federal district’s agreement does not bind another.
Therefore, prosecutors will argue that the 2007 SD-Florida non-pros does not bar a 2019 SDNY indictment arising out of the same conduct and charging the same offenses.
I’m skeptical . . . and I think the SDNY is, too, notwithstanding the brave face prosecutors put on this week. They have carefully drafted an indictment far narrower than the SD-Florida’s contemplated case. If prosecutors really believed that there was no double-jeopardy problem, they’d have no such hesitation: They’d throw everything the FBI ever had at this sociopath. They know they are on thin ice.
I suspect it is too thin. There is a great deal in the non-pros that cuts against the suggestion that it was limited to the SD-Florida. Moreover, unlike Professor Jonathan Turley (among others), I believe the Supreme Court’s recent double-jeopardy ruling — in the Gamble case (addressed in this column), which involved the “dual sovereignty” doctrine — hurts, rather than helps, the SDNY’s position.
The Non-Pros Was Expressly Intended to Cover Epstein ‘Globally’ for Crimes ‘Against the United States’
With astonishing chutzpah on Tuesday, Acosta tweeted that he is “pleased that NY prosecutors are moving forward with a case based on new evidence.” In point of fact, the non-pros he authorized was patently designed to foreclose the possibility of any federal prosecution of Epstein.
Notice that he says he’s glad the SDNY has found “new evidence.” You know why he has to say new evidence? Because he is not in a position to say the SDNY has found a new offense. If the SDNY had a new offense, prosecutors would have charged it and avoided the double-jeopardy bar. Instead, they have apparently collected new evidence of the same old offense on which Acosta already gave away the store.
For the Justice Department to overcome a defendant’s double-jeopardy protection, it is not enough to have new evidence. There has to be proof of a discrete criminal transaction that amounts to a new offense. The new offense may violate the same statute, but it has to be a course of conduct different from the one that has previously been prosecuted. New evidence that merely bolsters proof of an already prosecuted crime is insufficient.
The new SDNY indictment charges Epstein with two counts of sex trafficking, specifically: agreeing with others to entice girls under the age of 18 to engage in commercial sex acts, and actually enticing them to do so — what the law refers to, respectively, as a conspiracy offense and a substantive offense of the relevant statute, Section 1591 of the federal penal code. The offenses are said to have taken place between 2002 and 2005, primarily in Manhattan and in Palm Beach (or, in federal terms, in the SDNY and the SD-Florida).
Now, let’s look at the non-pros Acosta gave Epstein in 2007.
Acosta noted that, coterminous with a Florida state investigation of Epstein that had resulted in an indictment for soliciting prostitution,
the United States Attorney’s Office and the Federal Bureau of Investigation have conducted their own investigation into Epstein’s background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around 2007, including . . .
knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act . . . in violation of . . . Sections 1591(a)(1) and 2.
The point was to enable Epstein to settle all potential federal criminal liability from his sex-trafficking activities prior to 2007 by pleading guilty to a state prostitution charge. As Politico’s Josh Gerstein observes, the non-pros explicitly asserts that “Epstein seeks to resolve globally his state and federal liability” (my italics). Gerstein is right that the word “globally” is critical. It flies in the face of the aforementioned term that ostensibly limits the agreement to “this district” (the SD-Florida).
Yet that is far from the end of the ammunition the non-pros gives Epstein’s lawyers to bolster their claim that Epstein would not have pled guilty to the state charges unless the Justice Department (with Acosta as its authorized attorney) was committing to resolve all potential federal sex-trafficking charges in any federal jurisdiction.
Acosta’s agreement did not restrict itself to Epstein’s activities in Florida. It acknowledged that the SD-Florida and the FBI — our premier federal law-enforcement agency, which has nationwide scope and routinely conducts multi-district investigations — had been investigating offenses Epstein committed against the United States.
Moreover, sex trafficking and related offenses are cognizable federally only if they affect interstate or foreign commerce. That is, Epstein’s conduct necessarily had to have an impact on (and thereby be prosecutable in) multiple states and multiple federal districts in order to be prosecutable by the Justice Department. As if that were not obvious enough, the agreement makes it explicit. In addition to spelling out that the Section 1591 sex-trafficking conduct affected interstate commerce, Acosta says that the federal investigation conducted by his office and the FBI included all potential “offenses that may have been committed by Epstein against the United States” and that involved:
• Conspiring with others to use, and actually using, facilities in interstate and foreign commerce to induce minor females to engage in prostitution; and
• Conspiring with others to travel, and actually traveling, in interstate and foreign commerce for the purpose of engaging in illicit sexual conduct.
The non-pros further elaborates that Epstein’s conduct occurred with persons “known and unknown” to investigators. Implicitly, this is a statement that, while the government was aware of the kind of offenses that Epstein had committed, its evidence was not so comprehensive that it was aware of every single person involved. That is, with respect to Epstein, the agreement was meant to encompass all instances of the offenses described, even if the investigation had not yet identified all potential conspirators and victims.
Further, reports indicate that Epstein lawyer Ken Starr went over Acosta’s head to appeal to the Justice Department, which rejected his argument that a federal prosecution of Epstein was not warranted. Only after that did Epstein finalize the non-pros and plead guilty.
It was reasonable for Epstein to assume that settling the federal case in SD-Florida would settle it in all the affected federal districts. He will be able to contend that he had every reason to believe that he was dealing with the Justice Department regarding offenses against the United States, not just its prosecutor in the SD-Florida regarding purely local crimes. If that is not so, then no plea agreement involving a federal crime that relies on interstate commerce for federal jurisdiction (i.e., most federal crimes) has double-jeopardy protection: If the feds don’t like the sentence the judge imposes, they may simply file a new indictment charging the same offense in the other state (or states) affected by the conduct.
SDNY and SD-Florida Are Parts of the Same Sovereign
As we’ve noted, it is true that there is Second Circuit authority for the proposition that a prosecutor’s agreement in one federal district is not necessarily binding on a prosecutor in another federal district. Yet there is not universal agreement on this point. And even in Second Circuit double-jeopardy jurisprudence, a conviction or acquittal in one district will bar a successive prosecution in another district for the same offense. It has never made sense to me that double-jeopardy principles protect a defendant who has been convicted or acquitted by a jury, but not one whose case has been disposed of by a plea or non-pros agreement with a prosecutor that has the same effect.
In any event, the Second Circuit authority will have to be reconsidered in light of the various opinions in Supreme Court’s recent Gamble decision. That case involved a federal prosecution following a state conviction for the same crime. As discussed in my aforementioned column, we reluctantly abide multiple prosecutions for the same misconduct, despite our double-jeopardy principles, only because the laws of two different sovereigns — state and federal — are implicated. Even though the crime may be the same (e.g., illegal possession of a gun), there are two separate offenses because an offense is the violation of each sovereign’s separate criminal code and jurisdiction.
While successive prosecutions by different sovereigns do not violate the letter of the Fifth Amendment, they are in tension with its double-jeopardy clause’s conception of fundamental fairness. Because of that, despite the dual-sovereignty doctrine, many states do not permit successive prosecutions if a person has already been tried by federal authorities or those of another state. That’s how seriously we take double jeopardy.
Now, contrast Epstein’s case. It is because of dual sovereignty that Epstein’s top-shelf legal team worked in 2007 to dispose of state and federal liability simultaneously. The avoidance of successive prosecutions is precisely what he bargained for — he pled guilty and served time on state charges on the condition (to which Acosta, on behalf of the Justice Department, agreed) that there would be no federal prosecution.
Consequently, the issue presented by the new SDNY indictment is not dual sovereignty; it is straightforward double jeopardy. SD-Florida and SDNY are different federal venues, but they are part of the same sovereign.
That sovereign, the United States, is now attempting to proceed with a second prosecution for the same offense. The reason for this, transparently, is that federal officials are mortified by the result of the first prosecution: The Justice Department is embarrassed because of how Acosta, then its representative, handled the first case; and the White House is embarrassed because the president subsequently chose Acosta for a cabinet post. But dissatisfaction with the prior result is not a justification for dispensing with the Constitution’s safeguards.
Gamble was not a unanimous decision. The Supreme Court is divided over the validity of successive prosecutions, even in the dual-sovereignty context. Justices Gorsuch and Ginsburg are convinced they violate double jeopardy. Justice Thomas only reluctantly went along with the majority. That majority, led by Justice Alito, was emphatic that what made the successive prosecution permissible was the fact that the federal government and state governments are different sovereigns — that and that alone can make the same crime a different “offense” for double-jeopardy purposes.
I do not believe this Supreme Court would approve successive prosecutions by different districts of the same sovereign. And that is significant here. In the double-jeopardy context, the constitutional violation is not just to convict or acquit a defendant a second time; it is to subject him to any facets of prosecution for a previously prosecuted offense. Even if Epstein’s SDNY indictment is upheld by the district court and the Second Circuit, he will have an opportunity to seek Supreme Court review before his prosecution proceeds to trial.
In evaluating the Acosta–Epstein non-pros, it is critical to set aside how manifestly unjust it is. In that, our outrage is no different from what we feel on the rare occasion when a jury acquits a patently guilty defendant of horrible crimes (e.g., O. J. Simpson). How angry the sheer injustice of the outcome makes us is a separate matter from how broadly the legal judgment protects the defendant — indeed the latter is the cause of the former.
You have to keep reminding yourself that, in our system, people are presumed innocent, and the government bears the burdens of a prosecution aimed at depriving an accused of liberty, including the burden of being limited to a single opportunity to convict. The vast majority of the time, that is something to celebrate. Alas, it is not something we can afford to disturb when, inevitably, it produces some atrocious results — not without putting our fundamental protections from government abuse at risk.
The SDNY should absolutely prosecute the monstrous Epstein if prosecutors can find a new offense. Let’s hope they find one.
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