Jeffrey Edward Epstein, billionaire pedophile, left, and R. Alexander Acosta, Secretary of Labor, right,.

Is there such a thing as getting too good a deal for your client?

In devastating detail, the Miami Herald last week laid out billionaire Jeffrey Epstein's secret sweetheart plea to dodge charges that he sexually abused and trafficked dozens of underage girls.

The 2008 deal was signed off on by Alexander Acosta—at the time the U.S. Attorney for the Southern District of Florida and now Secretary of Labor—who has rightly found himself in the hot seat.

“Why Does Alex Acosta Still Have a Job?” the New York Times asked. “The Labor Secretary Went Easy on a Pedophile; He Must Be Fired, Right Now,” opined the Daily Beast. “Lawmakers call for investigation of Labor Secretary Acosta after scathing report,” USA today wrote. Even Fox News isn't defending him. “Trump Labor Secretary Alexander Acosta went easy on pedophile predator who ensnared victim at Mar-a-Lago: report.”

But what about the lawyers who represented Epstein? They include Kirkland & Ellis partner Jay Lefkowitz, as well as Kenneth Starr, Alan Dershowitz, white collar giants Roy Black and Gerald Lefcourt, and former U.S. Attorney Guy Lewis.

They can't be faulted for trying to get the best deal possible for their client. That was their job, and they did it well.

Maybe too well.

Because they so thoroughly steamrolled Acosta and federal prosecutor A. Marie Villafaña, the non-prosecution agreement could still be invalidated 10 years later.

Two Jane Does challenged Epstein's non-prosecution deal, alleging that the feds violated the Crime Victims Rights Act by failing to tell them about it. A decade later, their suit remains pending in Miami federal court.

In the #MeToo era—and now under the spotlight—U.S. District Judge Kenneth Marra in the Southern District of Florida may find it difficult to side with the prosecutors.

The remedy for violating that act isn't entirely clear. One can only hope that Epstein, at least in theory, could still go to federal prison. (And yes poor fellow, leave his luxury estate on his private island in the U.S. Virgin Islands.)

In 2008, Epstein pleaded guilty to two state felony offenses of solicitation of prostitution—even though the “prostitute” was 14 and below the legal age of consent—and procurement of minors for prostitution.

He served 13 months in the private wing of the Palm Beach County jail, where according to the Miami Herald, he had work release privileges that allowed him to go to his office six days a week for 12 hours a day, never mind that sex offenders weren't supposed to be eligible for work release.

He was also required to register as a sex offender and pay restitution to three dozen victims.

But he could have faced life in federal prison—and according to the Miami Herald, the evidence against him was overwhelming.

“This was not a 'he said, she said' situation. This was 50-something 'shes' and one 'he'—and the 'shes' all basically told the same story,'' retired Palm Beach Police Chief Michael Reiter, who supervised the police probe, told the Herald.

It's not clear exactly how defense counsel persuaded Acosta (who was in his late 30s at the time and had no prior experience as a prosecutor) and his underlings to accept such a lenient deal. What's key now is that the agreement also included a confidentiality provision.

Why did Acosta's office go along with it?

“A reasonable inference from the evidence is that the U.S. Attorney's Office—pushed by Epstein—wanted the non-prosecution agreement kept from public view because of the intense public criticism that would have resulted from allowing a politically-connected billionaire who had sexually abused more than 30 minor girls to escape from federal prosecution with only a county court jail sentence,” wrote Bradley Edwards of Edwards Pottinger in Fort Lauderdale, who represents the Jane Does, in court papers.

“Another reasonable inference,” he continued, “is that the office wanted the agreement concealed at this time because of the possibility that the victims could have objected to the agreement in court and perhaps convinced the judge reviewing the agreement not to accept it.”

Just one problem with the tactic: Under the Criminal Victims Rights Act, victims are supposed to be kept in the loop.

And indeed, the two Jane Does who are challenging the deal both received victim notification letters, where the Justice Department promised it would make its “best efforts” to protect their rights, including the right “to be reasonably heard at any public proceeding in the district court involving…plea.”

According to their complaint, they were strung along by Acosta's office, which told them that their cases were still “currently under investigation” for months after the non-prosecution agreement was signed.

Calling the non-prosecution agreement “simply illegal,” they've asked the court to invalidate it.

The case is moving in slow-motion. Perhaps Marra is not too eager to poke this hornet's nest.

The last substantive filing was last year, when the government argued that the petitioners invoked the non-prosecution agreement “in order to prevail in their civil money damage lawsuits against Epstein,” wrote AUSA Dexter Lee.

“Now that victory has been secured in the civil lawsuits, petitioners condemn the same non-prosecution agreement that they wielded as a sword, claiming that it is the product of a conspiracy between Epstein's attorneys and the government, and the subject of deliberate concealment by the government. Petitioners cannot have it both ways. Judicial estoppel should be applied to bar their claims.”

Except the victims were not told of the agreement, and they never had the chance to protest it.

Which leaves me with the same question for the U.S. Attorney's Office for the Southern District of Florida: Whose side are you on anyway?

 

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