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Acosta's Sweetheart Deal Likely to Foreclose Epstein's SDNY Prosecution
[Outline] Double-jeopardy rules almost certainly prohibit settling a federal case and then prosecuting it again in federal court.Alex Acosta did a bad job on the Jeffrey Epstein case. This column was nearly finished when news broke Friday that he would resign as labor secretary. I was going to argue that his lapses did not justify joining the nakedly political mau-mauing by Democrats who have no interest in exploring the behavior of Democrats who are neck-deep in a monstrous pedophile’s activities. My friend Jennifer Braceras has ably addressed that point in a Washington Examiner column. I was also going to add that I’d shed no tears if President Trump forced Acosta out ‐ easy for me to say, since I think (a) he should never have been nominated in the first place, and (b) his commitment to Trump’s deregulation agenda has never been sufficiently ardent. Under the circumstances, I’ll spare you a few hundred words of critique on Acosta’s indecorous performance. Instead, to cut to the chase, I do not believe we can yet total up the wages of the sweetheart deal he cut for Epstein while he was U.S. attorney for the Southern District of Florida (SD-Florida). The commentariat is glibly assuming the courts will give the feds a second bite at the apple by allowing the U.S. attorney for the Southern District of New York (SDNY) to prosecute the charges that Acosta forfeited. I don’t think so. Double Jeopardy On Monday, Geoffrey Berman, the U.S. attorney for the Southern District of New York, announced that his office has now charged Epstein. While the SDNY indictment may be new, Epstein’s crimes are not. They are the same offenses from which Acosta agreed to spare Epstein from federal prosecution if he pled guilty to state prostitution charges ‐ which Epstein proceeded to do, in reliance on Acosta’s commitment. There is thus a very good chance, based on the Constitution’s guarantee against double jeopardy, that the SDNY case against Epstein will be voided by the SD-Florida non-prosecution agreement (non-pros). To be sure, the SDNY has a counterargument, and it will be vigorously made. It has two components. First, there is language in the non-pros that appears to limit the agreement to SD-Florida, to wit: "prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida" (emphasis added). Here, "deferred" effectively means forfeited ‐ the same effect for double-jeopardy purposes as a conviction or acquittal ‐ because of Epstein’s compliance with the requirement that he plead guilty in the state case. Second, there is jurisprudence in the Second Circuit (which controls in the SDNY) holding that one federal district’s agreement does not bind another. Therefore, prosecutors will argue that the 2007 SD-Florida non-pros does not bar a 2019 SDNY indictment arising out of the same conduct and charging the same offenses. I’m skeptical . . . and I think the SDNY is, too, notwithstanding the brave face prosecutors put on this week. They have carefully drafted an indictment far narrower than the SD-Florida’s contemplated case. If prosecutors really believed that there was no double-jeopardy problem, they’d have no such hesitation: They’d throw everything the FBI ever had at this sociopath. They know they are on thin ice. I suspect it is too thin. There is a great deal in the non-pros that cuts against the suggestion that it was limited to the SD-Florida. Moreover, unlike Professor Jonathan Turley (among others), I believe the Supreme Court’s recent double-jeopardy ruling ‐ in the Gamble case (addressed in this column), which involved the "dual sovereignty" doctrine ‐ hurts, rather than helps, the SDNY’s position. Andrew C. McCarthy, July 13, 2019, National Review Lawfare is the using of the legal system to maintain a two-tier system of justice where the person with the most money and the best legal team can make the justice system seem unfair. An example of the use of lawfare is the O.J. Simpson case. Another example is the Epstein plea deal in the Southern District of Florida. The plea deal was designed to prevent another jurisdiction from prosecuting a case under double jeopardy argument. This article presents a pessimistic view for Epstein being prosecuted in New York for the crime of human trafficking of minor girls . Posted by: JohnQC 2019-07-14 |
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