Senator rips finding that Acosta used ‘poor judgment’ but broke no rules in Epstein case
BY KEVIN G. HALL, JAY WEAVER AND BEN WIEDER NOVEMBER 12, 2020 02:12 PM
Former U.S. Attorney Alexander Acosta used “poor judgment” when he chose not to prosecute Palm Beach multimillionaire Jeffrey Epstein on federal sex-trafficking charges and instead let him plead guilty to a state offense of soliciting young girls for sex, the Justice Department said Thursday.
The department’s Office of Professional Responsibility concluded that Acosta, who served as labor secretary in the Trump administration until the scandal over his mishandling of the Epstein case forced him to resign in July 2019, committed no professional wrongdoing and violated no ethics standards. The non-prosecution agreement was signed over 10 years earlier when Acosta was U.S. attorney for South Florida.
“Acosta’s decision to decline to initiate a federal prosecution of Epstein was within the scope of his authority, and OPR did not find evidence that his decision was based on corruption or other impermissible considerations, such as Epstein’s wealth, status, or associations,” a 13-page executive summary of OPR’s report says.
After the executive summary was released, Acosta, who had long refused to answer the Miami Herald’s questions about his actions, issued a two-page statement saying it “fully debunks allegations that the [United States Attorney’s Office in South Florida] improperly cut Epstein a ‘sweetheart deal’ or purposefully avoided investigating potential wrongdoing by various prominent individuals.”
The Republican senator who requested the review after a Miami Herald investigative series saw it differently.
“Letting a well-connected billionaire get away with child rape and international sex trafficking isn’t ‘poor judgment’ — it is a disgusting failure. Americans ought to be enraged,” Nebraska Sen. Ben Sasse, chairman of the Senate Judiciary Oversight Subcommittee, said in a statement Thursday afternoon. “Jeffrey Epstein should be rotting behind bars today, but the Justice Department failed Epstein’s victims at every turn.
“The DOJ’s crooked deal with Epstein effectively shut down investigations into his child sex trafficking ring and protected his co-conspirators in other states. Justice has not been served,” Sasse said. “The full report needs to be released to the public. OPR might have finished its report, but we have an obligation to make sure this never happens again.”
Sasse, who had pressed the Justice Department for more than three years to investigate the handling of Epstein’s charges, demanded that the agency release the report. Although the department didn’t do so, the Miami Herald and its parent company, McClatchy, obtained a copy on their own.
In the full report, OPR concluded that “Acosta exercised poor judgment when he failed to make certain that the state intended to and would notify victims identified through the federal investigation about the state plea hearing. His decision left victims uninformed about an important proceeding that resolved the federal investigation, an investigation about which the [United States Attorney’s Office] had communicated with victims for months. It also ultimately created the misimpression that the [Justice] Department intentionally sought to silence the victims.”
The report also contains an intriguing mention of former President Bill Clinton and how his friendship with Epstein might have affected the prosecution. It also paints celebrity attorney Alan Dershowitz in unflattering terms.
The summary said the Office of Professional Responsibility, which investigates allegations of misconduct by federal prosecutors, had reviewed “hundreds of thousands of records,” including emails, letters, memos and investigative materials, and conducted “more than 60 interviews of witnesses,” from FBI case agents to a former deputy attorney general of the Justice Department.
In a statement, the Justice Department said it shared the executive summary of the report with victims on Thursday and the full report with a congressional committee.
“While OPR did not find that Department attorneys engaged in professional misconduct, OPR concluded that the victims were not treated with the forthrightness and sensitivity expected by the Department,” the statement said.
Among the federal prosecutors who avoided being targeted for criticism in the executive summary were Acosta’s former top assistant, Jeffrey Sloman; ex-criminal chief Matthew Menchel; former case prosecutor Marie Villafaña, who had prepared a sex-trafficking indictment against Epstein that was not filed; and her boss, Andrew Lourie. They and their actions, however, are detailed in the full, unreleased report.
“I am pleased that OPR finally has completed its investigation but am disappointed that it has not released the full report so the victims and the public can have a fuller accounting of the depth of interference [by the U.S. Attorney’s Office management and Epstein’s lawyers] that led to the patently unjust outcome in the Epstein case,” Villafaña, who resigned as a federal prosecutor last year but had remained silent on the matter, said in a statement. “That injustice, I believe, was the result of deep, implicit institutional biases that prevented me and the FBI agents who worked diligently on this case from holding Mr. Epstein accountable for his crimes.”
Sloman, who served as Acosta’s first assistant during the Epstein prosecution, declined to comment. In an op-ed piece published last year in the Miami Herald, Sloman acknowledged that “Epstein deserved harsher punishment than he ended up getting.”
At the time, Sloman defended Acosta’s integrity in handling the case. “Our priorities were to make sure Epstein could not hurt anyone else and to compensate Epstein’s victims without retraumatizing them,” Sloman wrote in February 2019, apparently referring to a short term Epstein served in the Palm Beach jail and settlements paid to some of Epstein’s victims.
The op-ed was published months before Acosta resigned as labor secretary.
The OPR investigation was prompted by the 2018 Miami Herald series Perversion of Justice, which renewed interest in the non-prosecution agreement.
The executive summary mentions the Miami Herald’s reporting numerous times as the reason for the intense public interest. It mentioned a breakfast meeting between Acosta and one of Epstein’s lawyers, Jay Lefkowitz, in October 2007 that was highlighted in the Herald’s series.
“OPR did not find evidence establishing that Acosta’s ‘breakfast meeting’ with one of Epstein’s defense counsel in October 2007 led to the NPA, which had been signed weeks earlier, or to any other significant decision that benefited Epstein,” the report said. Acosta, in his statement, pointed to this as evidence he acted properly and that the Herald’s reporting, which described the meeting as unusual, was flawed.
The Herald’s series, however, described how in the months after the meeting Epstein’s legal team peppered Acosta and his subordinates with emails demanding modifications to the arrangement, citing assurances given at the meeting. Emails examined by the Herald show the lawyers wanted victims not to be informed of the status of negotiations — contrary to the Crime Victims Rights Act — apparently to ensure there was no interference in the shaping of the deal. Emails and other communications showed they also pushed to have the arrangement sealed by a judge so it could not be examined by the victims or the public.
All of that occurred, although the agreement was eventually unsealed.
The report also provides answers to who knew about the deal at DOJ headquarters. It outlines how just after the original deal was hammered out Epstein attorneys began going over Acosta’s head to lobby headquarters.
In a May 2008 letter to Deputy Attorney General Mark Filip, two of the prominent members of Epstein’s legal team, former Solicitor General Kenneth Starr and former U.S. Attorney Joe Whitley, suggested that the federal investigation into Epstein was politically motivated because of his close ties to former President Clinton. There was “little doubt,” they wrote, that Acosta’s office “never would have contemplated a prosecution in this case if Mr. Epstein were just another ‘John.’ ”
Starr, ironically, is best known for his dogged pursuit of Clinton during his impeachment for lying about his affair with intern Monica Lewinsky.
Despite those efforts to sway senior Justice Department officials, the report suggests that then-Attorney General Michael Mukasey had no role in the Epstein case. The report notes that Mukasey had lunch in Miami with Acosta and other senior managers in the U.S. Attorney’s Office a little over a month before Epstein ultimately pleaded guilty in state court, but that Epstein’s case was not discussed at that time.
The Office of Professional Responsibility is a nonpartisan division of the Justice Department, formed in 1975 in response to the Watergate scandal and run by career prosecutors. It investigates allegations of professional misconduct by DOJ prosecutors and immigration judges.
As the Herald previously reported, and as was acknowledged in its report, the Office of Professional Responsibility previously declined to investigate complaints about the handling of the Epstein case in 2010, citing ongoing litigation involving the victims.
The OPR’s summary said that Epstein’s victims and their attorneys were among those interviewed for the internal investigation, a detail confirmed by one of the lawyers, Spencer Kuvin. The Justice Department’s questions, he cautioned, were narrowly focused on the sexual assault laws in Florida at the time the crimes were committed. It was a time when the law did not prescribe serious punishment for those who inappropriately touched victims under the age of consent, which is 18 in Florida.
“Merely touching was punished differently than full intercourse,” Kuvin said. “In the case of my clients, there was no penetration. That law has since been changed.”
Kuvin also questioned why the FBI did not dig deeper.
“They had interviewed enough people to know that Epstein was traveling between New York and New Mexico so any decent investigator would have looked into whether he was doing this in other states,” he said, citing two other locales where Epstein maintained homes. “I don’t believe the FBI didn’t do that. I think the U.S. attorney made a conscious decision to shut the investigation down quickly and that was Acosta’s decision.’‘
Epstein’s victims are mentioned in another passage in the full report, concerning Epstein attorney Alan Dershowitz. In it, former Palm Beach County State Attorney Barry Krischer recalled that Epstein’s defense team had brought “voluminous material” seeking to discredit Epstein’s accusers in pushing for the state to allow Epstein to plead no contest, rather than guilty to possible sex charges.
Krischer told OPR that he remembered Dershowitz as “overly aggressive,” adding that Dershowitz had threatened, “We’re going to destroy your witnesses; don’t go to court because we’re going to destroy those girls.” Dershowitz and Epstein accuser Virginia Roberts Giuffre are currently suing each other for defamation.
Dershowitz didn’t deny raising issues about the credibility of Epstein’s accusers in conversation with Krischer but did deny using that language.
“In 55 years of practice, I can say that I have never threatened to destroy a witness,” Dershowitz said. “ I told him that his witnesses — there were only a handful at the time — had credibility issues and that it was our duty, as defense lawyers, to challenge their credibility.”
Dershowitz, who has dueling slander lawsuits with one of Epstein’s victims who accused him of sexual misconduct, said that he wasn’t contacted by the authors of the Justice Department report. The famed lawyer has denied the woman’s claim that he had sex with her.
In the wake of the Herald’s series about Acosta’s handling of the Epstein case, the U.S. Attorney’s Office in New York filed sex-trafficking charges against Epstein and arrested him in July 2019 — making the same federal case that Acosta’s office could have made a decade earlier against the New Yorker, who owned a townhouse mansion in Manhattan. The revived case, however, took a shocking detour when the 66-year-old was found hanging in his cell in August 2019 under mysterious circumstances. His death was ruled a suicide.
The original investigation more than 10 years ago found that Epstein paid dozens of girls, many of them underage, cash to engage in nude massages, masturbation, oral sex and intercourse in his palatial mansion in Palm Beach. The encounters were scheduled by members of his staff.
As a result of his plea in state court, Epstein registered as a sex offender in Florida and agreed to pay damages to 40 female victims ranging in age from 13 to 17. As part of the plea agreement negotiated by Acosta’s office, Epstein wouldn’t be charged in federal court — even though the feds had drawn up a proposed 53-page indictment that carried potential punishment ranging from a mandatory 10 years in prison to a life sentence.
Acosta’s “non-prosecution agreement” was signed by the financier and his lawyers in September 2007 and amended through the end of that year. The deal also immunized several of his alleged co-conspirators from federal prosecution. The DOJ report criticizes the non-prosecution agreement as a “flawed mechanism” that removed federal control over the case to state authorities.
Epstein ended up serving just over a year in a Palm Beach County stockade — while local authorities allowed him during his incarceration to go to work or do whatever he wanted for six days out of every week, returning to the stockade only at night.
David Lightman in Washington contributed to this report.
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