Acosta’s sweetheart deal likely to foreclose Epstein’s SDNY prosecution

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.