Suspected sex trafficker Jeffrey Epstein was handed another break by the Department of Justice on Monday when federal prosecutors rejected his victims’ efforts to throw out his plea deal and prosecute him for abusing dozens of underage girls.
In the 35-page motion, filed in federal court in the Northern District of Georgia, federal prosecutors said that there is no legal basis to invalidate Epstein’s non-prosecution agreement — and they warned the federal judge in the case against doing the same.
U.S. Attorney Byung “B.J.” Pak said that because Congress did not outline specific penalties in the Crime Victims’ Rights Act when it was created by Congress, Epstein’s victims have no right to demand anything from the government — not even an apology. A federal judge ruled earlier this year that the plea deal violated that legislation.
In the filing, federal prosecutors did concede that the U.S. Attorney’s Office in South Florida failed to treat Epstein’s victims — most of whom were 13 to 16 years old — fairly, but they said that the law gives prosecutors discretion in deciding how to dispose of a case. Victims have a right to confer with prosecutors, but no rights beyond that, Pak said.
The federal judge in the case, Kenneth Marra, will have to decide what happens now.
Epstein, a politically connected financier, escaped federal sex-trafficking charges after his high-powered lawyers, led by Kenneth Starr and Alan Dershowitz, pressured prosecutors in Miami to work out a secret plea deal in 2007.
The controversial agreement, engineered by then-Miami U.S. Attorney Alexander Acosta, allowed Epstein to plead guilty to lesser charges in state court, resulting in a 13-month jail sentence on a single prostitution charge involving a girl who was 17. At the time, investigators had identified nearly three dozen victims.
The women, now in their late 20s and early 30s, were underprivileged middle and high school girls recruited in and around Palm Beach County from about 1998 to 2006.
The Miami Herald, in a three-part series published in November called “Perversion of Justice,” detailed through emails, letters and other court documents how federal prosecutors worked hand-in-hand with Epstein and his lawyers to keep his victims in the dark and seal records so that no one would know the extent of Epstein’s crimes or who was involved.
Acosta agreed to not prosecute Epstein federally, which means Epstein is not subject to double jeopardy. Instead, his plea agreement included unusual language that granted federal immunity — not only to Epstein, but to others who were never identified or named, leading many to suspect that the deal covered up a larger sex trafficking operation, possibly crossing international borders.
Two of Epstein’s victims sued the government in the Southern District of Florida in 2008. During the course of that case, which dragged on for a decade, evidence was uncovered that showed Epstein and others working for him had been recruiting underage girls in the United States and abroad.
Since then, at least two other women have come forward alleging in court documents that Epstein and one of his partners, British socialite Ghislaine Maxwell, had been recruiting women and underage girls to force them to have sex. Maxwell has never been charged and has denied the allegations.
The Herald has been seeking to unseal documents in a New York case involving her that could provide new information about Epstein’s operation. Maxwell’s lawyers have been fighting the Herald’s effort, which is supported by the Reporters Committee for Freedom of the Press and 32 other media companies, including The New York Times, Washington Post, Dow Jones, Fox News, Gannett, Politico, Reveal Center for Investigative Reporting and Tribune Publishing Co.
In February, Judge Marra ruled that Acosta and other federal prosecutors not only broke the law by failing to tell the victims that a deal had been reached, but that they deliberately misled victims into believing the FBI was still actively investigating the case.
In ruling that the plea deal was illegal, Marra directed lawyers for the victims and the government to file legal briefs outlining ways to resolve the case. Two of Epstein’s victims, Jane Doe No. 1 and Jane Doe No. 2, said they want the deal invalidated and Epstein prosecuted.
Sources have told the Herald that at least 16 other women also want him prosecuted.
Pak did, however, say that victims would be given an opportunity to confer in private with prosecutors, or if they wish, be heard at a public hearing. He also agreed to give federal prosecutors additional training on dealing with crime victims.
Marci Hamilton, a law professor at the University of Pennsylvania and CEO of CHILD USA, said giving the victims a chance to speak at a hearing is a good first step.
But prosecutors’ failures went beyond the Crime Victims’ Rights Act, she said.
“I continue to believe that the government violated the due process rights of the victims in its failure to inform them of the deal in a timely manner,’’ Hamilton said. “That is a constitutional violation and the remedy is not limited to the Crime Victims’ Rights Act’s provisions.’’
Jack Scarola, one of the victims’ attorneys, said the government’s remedies ignore an important element in the case that Congress could never have predicted when it created the Crime Victims’ Rights Act in 2004.
“Congress didn’t provide for remedies for circumstances like this because it was inconceivable to Congress that there would be a conspiracy between our government and a serial child molester — who could have conceived of that?’’ Scarola said.
Pak, who was appointed by President Donald Trump, went so far as to warn the judge in the case that the court had no authority to overrule the original decision by Acosta not to prosecute Epstein.
“Courts are not to interfere with the free exercise if the discretionary powers of the [United States attorneys] in their control over criminal prosecutions,’’ said Pak, citing case law. “The decision whether to prosecute Epstein lies solely within the executive branch, and any order today, by this court, as to what the government must do in the future would be wholly inappropriate.”
Scarola, a former prosecutor, conceded that prosecutors do have discretion to handle a case as they see fit, but that discretion is not unlimited; victims have the right to appeal to the judge at sentencing, something Epstein’s victims were denied.
“Courts reject plea deals when they find them to be unjustifiable and unreasonable — especially if they are not told the full scope of the agreement,’’ Scarola said.
Joseph A. DeMaria, a former federal prosecutor, said there is no perfect justice in this case. But Pak’s remedy makes the best sense given there is no mechanism to undo the plea agreement.
“The government’s agreement to meet with the victims, provide them a public forum to present their grievances and to require additional training to the U.S. Attorney’s Office that committed this violation, is the right remedy,’’ said DeMaria. “Pak has properly proposed to give the victims what they should have been given in 2007 — a real voice in the process.”
Pak took over the case in March after prosecutors in South Florida where the case originated recused themselves. Joining him in signing the brief were assistant U.S. attorneys Jill E. Steinberg and Nathan P. Kitchens.
After the Herald series, Congress demanded that the Justice Department investigate the case, examining whether Acosta — who is now President Trump’s secretary of labor — committed any prosecutorial misconduct in negotiating the deal.
The Justice Department assigned its Office of Professional Responsibility to handle the review. But OPR has no oversight over former attorneys in the Justice Department, including Acosta, so it’s unclear what will become of the probe.
Acosta has repeatedly refused to comment to the Herald about the case. In the past, he has told Congress that the deal was necessary to ensure that Epstein received some jail time and registered as a sex offender.
But Epstein’s lenient treatment continued even after he was sentenced, as he received extraordinary privileges rarely, if ever, afforded to a child sex offender in Florida. He was allowed to leave the Palm Beach County jail for nearly half of every day on “work release.”
Epstein’s lawyers are expected to file a response in the CVRA case by July 8.
This story was originally published June 25, 2019 9:30 AM.