Alex Acosta speaks [UPDATED]

Alex Acosta held a lengthy press conference today to defend his handling of the Jeffrey Epstein prosecution. Reportedly, President Trump wanted Acosta to explain himself to the public and to face the news media.

Acosta did as well, I think, as he could have done under the circumstances. He may have done well enough to satisfy Trump, who clearly likes Acosta, for now. But Acosta did not do well enough to stem the avalanche of criticism that will continue to descend upon him — and on Trump if he decides to retain Acosta.

To Acosta’s credit, he took questions from all comers, and the press conference lasted for about an hour. Thus, there is a lot to unpack. In this post, I’ll try to focus on the main points.

Acosta came out spinning his prosecution of Epstein as heroic. Before his office stepped in, Florida prosecutors were ready to let Epstein walk altogether. Acosta intervened in order to make sure that Epstein served some jail time, had to register as a sex offender, and had to pay restitution to victims.

That’s fine as far as it goes. However, Acosta’s agreement not to prosecute Epstein must be viewed as of the time the deal was reached, not in comparison to what would have happened absent federal involvement. It must be viewed in terms of what it delivered, in light of the evidence that had been developed (and was being developed) at the time of the deal.

The deal delivered an outcome whereby Epstein, a serial pedophile, got a 13 month sentence. In addition, he was able to spend his days outside of prison.

Acosta had two basic lines of defense for such a light sentence. He blamed Florida law for enabling Epstein to do “work release.” Under the deal, the federal prosecution was dropped, leaving the terms of incarceration in Florida’s hands.

But Acosta knew this was a consequence of his agreement not to prosecute. And he knew, or should have known, that Florida law contemplated work release.

Thus, if, as Acosta says, his overriding goal was to make sure Epstein went to jail, he accomplished this only in a very weak sense. Epstein didn’t really do jail, he just slept there.

A competent U.S. Attorney who cared about delivering justice would not have agreed to deal that carried the likelihood of this outcome.

Acosta’s other defense is that the case against Epstein would have been difficult to win. “A roll of the dice,” he called it.

Acosta noted that some of the witnesses were scared and didn’t want to testify. However, dozens of victims had been identified at the time of the agreement, and many more would have been discovered had the FBI’s investigation not been halted as a result of the deal.

It’s implausible to think that, given the number of victims and egregiousness of Epstein’s conduct, his office could not have found the witnesses with which to present an extremely powerful case against the pedophile.

And why throw in the towel while the FBI was still investigating? Acosta’s case would only have grown stronger with time.

Acosta’s answer to this question was one of his worst moments of the day. He said the investigation could continue elsewhere. Talk about passing the buck. It was Acosta’s responsibility to prosecute Epstein and to allow the FBI to develop the strongest case it could against him.

Acosta argued that times were very different in 2008, when he reached the deal. Victims had less protection from “shaming” and were less likely to be believed. This is true to some small degree.

But the world hasn’t changed that dramatically in the past 11 years. Sex crimes against minors by had been successfully prosecuted for decades. Juries were scarcely more likely in 2008 than they are now to disbelieve or lack sympathy with 14 year-olds who were sexually abused by a powerful middle-age man. And certainly not when multiple victims testify to the same effect.

One way in which the world was the same in 2008 as now is that federal law required victims to be notified of deals like the one Acosta reached with Epstein. A federal judge has ruled that Acosta’s office violated that law.

Acosta didn’t address this matter in his statement, but it came up during questioning. He began (and not for the only time) by placing responsibility for the non-notification on one the office’s career prosecutors.

Next, Acosta came up with an elaborate and unpersuasive excuse. He noted that the deal conferred monetary restitution on the victims. Thus, if the victims were notified of it, they would know they had a financial interest in the case.

Then, if the deal fell through and went to trial, Epstein’s attorneys could attack the victims’ credibility by citing their financial interest.

The scenario Acosta outlined is too attenuated to be taken seriously as an explanation for the decision to violate federal notification law. In any event, the defense likely could have found a way (in the very unlikely event of a trial) to suggest that the victims had a financial motive even if they didn’t know about the proposed plea deal.

It seems clear that Acosta didn’t notify the victims because he knew some of them would be appalled by it — as they, and the rest of the world, are today.

Acosta declined to apologize to Epstein’s Florida victims. He couldn’t bring himself to say that he regrets the way he handled the case. Doing either of these things would have been inconsistent with the position he took today — that all of his decision in the case were reasonable judgement calls that the career prosecutors in his office were on board with (and in some cases were responsible for making).

For me, the problem is that this position is untenable.

There is more to chew on from Acosta’s press conference, and I may have more to say about it later. For now, I’ll conclude by expressing my fear that Acosta’s performance might have been just good enough to enable him to continue doing Trump no good.

UPDATE: I want to stress more than I did in the original post the misleading nature of Acosta’s claim that he saved the day by intervening with state prosecutors who were about to let Epstein walk. Acosta made it sound like he pulled off a last minute rescue job by making sure the state case carried a jail sentence with it.

In fact, however, Epstein would not have avoided jail time even if the Florida prosecutors had dismissed their case or let Epstein off on a simple misdemeanor plea. The U.S. Attorney would still have been free to bring federal charges based on the FBI’s investigation.

A responsible U.S. Attorney who took the sexual abuse of children seriously and wasn’t swayed by fancy Washington, D.C. lawyers would have allowed the FBI to complete its investigation and then demanded a sentence commensurate with Epstein’s criminality — a life sentence or something approaching one. The prior Florida prosecution, or non-prosecution, wouldn’t have been a barrier to this result.

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