Is the Epstein-Acosta plea deal a barrier to new prosecution?

Yesterday, in discussing the new charges brought against Jeffrey Epstein by the U.S. Attorney’s office in New York, I said I was unclear as to whether, or to what extent, Epstein can use the sweetheart plea deal his lawyers negotiated with Alex Acosta to fight the new charges against him. Ken White, a former federal prosecutor, takes up the subject in an article for The Atlantic.

White observes that “every federal plea agreement I’ve ever seen includes a clause saying that it binds only the U.S. Attorney’s Office signing it, not any other office.” Thus, if the Epstein-Acosta deal were like every federal plea agreement White has ever seen, it plainly would not be a barrier to New York federal prosecutors bringing their case against Epstein.

But according to White, “Epstein’s non-prosecution agreement conspicuously, and very oddly, lacks that clause — which further demonstrates the suspicious nature of the deal.” I’ll say.

But this doesn’t mean the New York prosecution can’t proceed. Indeed, White believes it can. That’s because the agreement promises only that no prosecution will be instituted “in this District” — that is, in the Southern District of Florida.

Looking at the language of the agreement, it’s clear that Epstein, naturally, wanted to resolve everything he could be prosecuted for as of the time of the agreement. This is reflected in a “Whereas” clause. It states:

It appearing that Epstein seeks to resolve globally his state and federal criminal liability, and Epstein understands and acknowledges that, in exchange for the benefits provided by this agreement, he agrees to comply with its terms. . . .

(Emphasis added)

The word “globally” suggests the resolution of everything. However, the issue isn’t what Epstein sought to resolve; it’s what the agreement says actually is resolved.

The agreement states:

After timely fulfilling all the terms and conditions of the agreement, no prosecution for the offenses set out on pages 1-2 of this agreement, nor any other offenses that have been the subject of the joint investigation by the [FBI] and the United States Attorney’s Office, nor any offenses that arose from the Federal Grand Jury will be instituted in this District, and the charges against Epstein, if any, will be dismissed.

(Emphasis added)

Thus, the scope of offenses subject to the non-prosecution agreement is (or approaches) “global.” However, the scope of the agreement not to prosecute extends only to the U.S. Attorney’s Office in Southern Florida.

Ed Morrissey makes this additional point:

[T]he plea agreement was contingent on Epstein refraining from committing any other crimes of the same nature, and of violating the terms of this agreement. If Epstein held onto child pornography created by him before or at the time of this agreement, it would void the plea deal. If he created it afterward, nothing in this agreement would protect Epstein against prosecution.

Taking all of this into account, it looks like Epstein’s plea agreement is unlikely to protect him from prosecution in New York. In a sense, it seems unfair that a defendant can resolve with one federal prosecutor’s office all possible criminal offenses for which he was investigated, only to be charged for some of these same offenses by a different federal prosecutor’s office.

However, if Epstein committed crimes in New York, and wanted a plea deal that let him off the hook for these crimes, he should have made the New York prosecutor a party to the deal. I don’t know who the New York prosecutor was at the time. However, it seems inconceivable that he or she would have given Epstein anything approaching the sweetheart deal that Acosta entered into — as Epstein’s lawyers surely understood. Thus, it doesn’t strike me as unfair to prosecute Epstein in New York for offenses he committed there.

Epstein’s use of the plea deal to ward off prosecution in New York puts Acosta in a lose-lose position. If the Epstein-Acosta plea deal insulates Epstein from prosecution, the deal will look even worse than it does now, because he failed to include boilerplate that would have enabled the current prosecution to proceed.

If the plea deal doesn’t insulate Epstein, the case will drag on for months, if not years, generating a stream of headlines that highlight the egregious leniency with which Acosta treated this monstrous pedophile.

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