Jeffrey Epstein is accustomed to having an entourage meet his private jet at the airport; he’s just not used to it being made up of FBI agents. Last Saturday, the billionaire and registered sex offender returned from a trip to Paris only to be arrested. The U.S. Attorney’s Office for the Southern District of New York, famously aggressive in pursuing high-profile prosecutions, charged Epstein last week with child sex trafficking in violation of Title 18, United States Code, Section 1591. These new charges represent the Department of Justice’s attempt to redeem a reputation soiled by the extremely questionable plea deal it gave Epstein in 2008.
In 2006 and 2007, Epstein—once a reliable companion of the well connected—faced extensive, detailed allegations that he paid multiple minors for sexual contact and for their services in procuring other minors. Most people, hammered with that kind of evidence, would spend the rest of their lives in prison. But Epstein could afford the lavish attention of a defense team staffed by legal luminaries such as Alan Dershowitz and Kenneth Starr. Most of us hope an attorney will defend us competently at trial, but the superrich can afford to go on the offense. Epstein’s lawyers hounded the U.S. Attorney’s Office for the Southern District of Florida, which was considering federal charges, based on reports that Epstein had procured underage girls across state lines. Former U.S. Attorney Alex Acosta—now President Donald Trump’s secretary of labor—characterized the tactic as a “year-long assault on the prosecution and prosecutors,” and complained that Epstein’s team investigated prosecutors and their families, “looking for personal peccadilloes that may provide a basis for disqualification.”
The strategy worked. Epstein’s team secured the deal of the millennium, one utterly unlike anything else I’ve seen in 25 years of practicing federal criminal law. Epstein agreed to plead guilty to state charges, register as a sex offender, and spend 13 months in county jail, during which time he was allowed to spend 12 hours a day, 6 days a week, out of the jail on “work release.” In exchange, the Southern District of Florida abandoned its criminal investigation of Epstein’s conduct, agreed not to prosecute him federally, and—incredibly—agreed not to prosecute anyone else who helped him procure underage girls for sex. This is not normal; it is astounding.
Why did the Department of Justice cut such a deal? Acosta claimed that the U.S. Attorney’s Office worried it would have trouble proving federal charges against Epstein. With all respect to Acosta—who, in full disclosure, was a law-school classmate—that explanation is not credible. Federal prosecutors are famously reluctant to bring hard-to-prove cases, unlike district attorneys, who are generally eager to roll the dice. But no federal prosecutor would hesitate to pursue allegations of pervasive, organized child-sex abuse, backed by firsthand witnesses. It is more plausible that Epstein successfully wielded his nearly incomprehensible money and power to influence the decision at the highest levels. The personal attacks on the prosecution likely helped too: Federal prosecutors aren’t used to being on the defensive. I once prosecuted a defendant with the resources to hire a famed Kennedy-assassination conspiracy theorist to spin elaborate tales about me; it was unsettling and made the case extremely difficult.
The Southern District of New York has charged headlong into this morass with an indictment charging Epstein with trafficking in minors as young as 14 for sex, and for conspiracy to engage in such trafficking. 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.
Great wealth insulates people from consequences, but not always, absolutely, or forever. And even the richest people in America lack the implacable, mindless power of the criminal-justice system. Now that Epstein’s past plea deal is public and radioactively controversial, he’s unlikely to get another one. Epstein will have the best criminal defense money can buy, again. But this time, that will probably not be enough to save him.
It is customary, when faced with the grotesque inequalities of the criminal-justice system, to decry the preferential treatment that people such as Jeffrey Epstein enjoy. Rather than complain that Epstein got too much justice, it would be far more productive to complain that most people get too little. Adequately funded criminal defense, bail reform, and other commonsense changes would do far more to improve the system than the prosecution of an occasional billionaire.
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