Has the federal government violated its plea deal with billionaire child molester Jeffrey Epstein? His high-profile arrest and the disgusting evidence it uncovered might not stand up in court, thanks to a vaguely written and expansive agreement forged by now-Labor Secretary Alex Acosta a dozen years ago. At issue is the word “globally” in the agreement in dealing with all crimes committed at that point — and the lack of limiting language in jurisdiction:
The new sex-trafficking prosecution against Jeffrey Epstein could rise or fall on how a judge interprets a single, rather mundane word.
The pivotal term — “globally” — lurks on the second page of a seven-page agreement signed in 2007 and finalized the following year, detailing a pledge by federal prosecutors in Florida not to prosecute Epstein for serial sexual abuse of underage girls if he pleaded guilty to two prostitution-related felonies in state court.
“IT APPEARING that Epstein seeks to resolve globally his state and federal criminal liability…” reads the document laying out what critics have described as a sweetheart deal well-connected defense lawyers won from the then-U.S. Attorney for Southern Florida Alex Acosta, who now serves as Labor secretary. Some lawyers say Epstein’s future may turn on how much weight the courts give to that tricky adverb.
This was the question I raised immediately after Epstein’s arrest. Could his attorneys have been incompetent enough to leave that kind of liability open in a plea deal? It seemed unlikely, especially given his resources and the big win those attorneys got for him in 2007. Epstein’s current attorneys are already making that argument in response to Epstein’s latest arrest:
“How in the world can that deal be undone?” Epstein defense lawyer Reid Weingarten asked at Epstein’s arraignment Monday in Manhattan, where Epstein entered a plea of not guilty. “It sure seemed like a global [resolution] to everyone at the time, including my client.”
Here’s the clause in question, which certainly gives the appearance of a holistic approach to federal prosecution regardless of jurisdiction:
“Globally” isn’t the entirety of the problem, either. The phrase “federal criminal liability” sounds a lot more expansive in the above context. There’s also this clause, which looks pretty inclusive of the previous investigation:
The Department of Justice has responded by claiming that the deal only committed the Southern District of Florida from prosecuting Epstein, hence “in this District.” However, this also states that “any other offenses” investigated by the FBI at that time would be dropped. Josh Gerstein also reports for Politico that the agreement itself is unusually vague and does not include normal boilerplate language on jurisdiction limitations. That seems “suspicious,” as our Twitter pal Ken “Popehat” White told Gerstein, especially since it was widely known at the time that Epstein maintained residences in multiple DoJ jurisdictions — and his attorneys would have insisted on making sure that Epstein was protected in any plea deal.
That would certainly explain the use of the word “globally” in the agreement. Gerstein suggests that Acosta’s deal might have included the word and excluded any explicit statements about jurisdiction in order to avoid having to get other US Attorneys to sign off on the agreement. That would raise new questions about Acosta’s actions and his motivations in settling the case so quietly for Epstein.
Still, Gerstein sounds skeptical about Epstein’s prospects for winning this argument:
Ultimately, Epstein’s current lawyers’ argument seems unlikely to prevail, in part because defendants rarely win arguments about implied promises in their plea deals.
Prosecutors have already told the court that precedents in the 2nd Circuit, which covers New York, indicate it is “well settled” that plea agreements are limited to prosecutors in the district that signs them, absent some agreement to the contrary.
Furthermore, the 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. The only possible defense in either case is arguing that the search warrant was invalid because it violated the original plea deal, and therefore all evidence seized would be inadmissible in court.
That’s the argument Epstein’s attorneys have to win. That’s the one they’ll fight all the way to the Supreme Court, if necessary. If they lose that argument, the photographs alone will bury Epstein in federal prison for the rest of his life, assuming prosecutors can establish that the girls in them were underage at the time the photos were taken.
Update: I missed Ken’s take at The Atlantic this morning, but be sure to read it all. Even though he raises the issue of vague jurisdictional language, Ken’s not convinced it will matter:
The indictment describes conduct in New York and Florida in 2002 through 2005—the same period covered by the earlier state and federal investigation. Epstein’s attorney Reid Weingarten characterized this as “ancient conduct,” but in 2006, Congress passed a law eliminating the statute of limitations for child sex-trafficking cases. Under applicable Supreme Court precedent, since the old five-year statute of limitations on Epstein’s alleged conduct had not yet run out, the new law applies to him and makes his conduct in 2002 through 2005 fair game.
Nor is Epstein’s miraculous 2008 non-prosecution agreement likely to spare him. 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. Epstein’s non-prosecution agreement conspicuously, and very oddly, lacks that clause—which further demonstrates the suspicious nature of the deal. But as the federal defense attorney Mark Bennett points out, the agreement promises only that no prosecution would be instituted “in this District”—that is, the Southern District of Florida. That detail, combined with federal law governing such agreements, likely means that no court will stop the Southern District of New York from prosecuting Epstein, especially given allegations that his sexual abuse of minors took place in New York as well as in Florida.
The feds, as is their habit, raided Epstein’s New York home while he was being arrested. In their motion asking the court to detain Epstein without bail, the government claimed that it had seized hundreds of photos of nude women or girls, some of whom appeared underage, kept on CDs thoughtfully labeled with things like “Girl pics nude.” The clonking sound you heard was 10,000 criminal-defense attorneys banging their heads on their desks. Such materials are not just potentially devastating evidence in Epstein’s prosecution. If Epstein had pornographic images of minors, he can expect the feds to add child-pornography charges to the indictment—and those charges are much easier to prove, without the challenges of a 15-year-old case.
Be sure to catch up with Ken’s Twitter feed, too. He raises some questions about probable cause with the search warrant, which I also noted will be a big issue, but again thinks that the courts will give the DoJ a lot of leeway:
/2 But it’s a doctrine that is not very closely policed by the judiciary. SDNY could have put in “fresh” basis for there being evidence in Epstein’s home NOW—or they may have relied on the old “law enforcement training and experience” trope.
— IncitementToResurrectionHat (@Popehat) July 9, 2019
/4 (And, to be fair to them, if the claims of what was found are true, in this instance that speculation would be right. But expect an attack on the search warrant on a freshness basis.)
— IncitementToResurrectionHat (@Popehat) July 9, 2019