The New York indictment alleges that between 2002 and 2005 Epstein sexually abused and exploited dozens of underage girls by paying them to perform sexual acts at his homes in New York City and Palm Beach, Fla. He allegedly paid some of his victims to recruit others, thereby creating large networks of young girls he subjected to abuse.
Epstein’s crimes in Florida were the subject of a controversial agreement approved in 2007 by then-U. S. Attorney for the Southern District of Florida Alexander Acosta, who is now President Trump’s secretary of labor. In what many have characterized as a sweetheart deal, Acosta agreed not to prosecute Epstein on federal charges if he pleaded guilty to Florida state sex crimes. Epstein’s attorneys now argue that the non-prosecution agreement in Florida should bar the new charges filed in New York.
The first hurdle for Epstein’s lawyers’ argument is the text of his Florida agreement itself. It plainly states that the Florida U.S. attorney, the only prosecutor who signed on to the deal, is promising only to bring no federal charges in “this District” — the Southern District of Florida. Indeed, Justice Department policy expressly prohibits one U.S. attorney from making an agreement about prosecution that purports to bind another U.S. attorney’s office without the approval of that office or the main Justice Department. But the Florida agreement does not even mention New York, much less purport to bind prosecutors there. Epstein had excellent lawyers who knew how to read an agreement. This one is not ambiguous.
The defense may seize on the agreement’s statement that Epstein was seeking to resolve “globally” his state and federal criminal liability. But in this context, a global resolution simply refers to one that resolves the interests of all parties involved in the ongoing matters involving Epstein at the time of the agreement. That meant the local and federal prosecutors’ offices in Florida, who had been investigating Epstein’s crimes in that state.
Nor does Epstein’s New York prosecution raise double jeopardy concerns. Double jeopardy only comes into play if the defendant was already convicted or placed on trial for the same offense. Because Acosta promised not to prosecute him, legally Epstein was never placed in jeopardy on federal charges in Florida. And as the Supreme Court reaffirmed just last month, double jeopardy does not bar federal prosecution for acts already prosecuted by a state.
But all these arguments really miss the key point, because they wrongly consider Epstein’s actions in Florida and New York as basically the same crime. That’s what underlies the defense claim that the government is seeking a “redo” — the idea that prosecutors are bringing the same case a second time. But it’s not the same case; it’s the same kind of crime committed in two different locations.
Suppose I rob a bank in New York and also rob a bank in Florida. If I entered into a plea agreement in the Florida case, no one would claim that agreement automatically resolved my robbery in New York if that case was not part of the deal. Each jurisdiction has an independent interest in prosecuting the crimes that occurred within its boundaries. One case does not go away if a defendant enters into an agreement resolving the other.
This is Epstein’s situation. The Florida case was focused on his actions in Florida. Although the new conspiracy charge does refer to acts in Florida, the heart of the New York case is Epstein’s alleged crimes in New York. Those involve different assaults on different dates in a different location and different victims from the Florida case. New York has a compelling local interest in pursuing those crimes.
Epstein’s former attorneys could have insisted that New York prosecutors be brought in on the Florida agreement, but apparently did not do so. Perhaps they feared New York might object and kill the deal. They may have preferred to try to fly below the radar and not call attention to Epstein’s New York misconduct. If so, that was a calculated risk. Or perhaps neither side was focused on his actions in New York at all. But regardless, there is no reason Epstein and his very able counsel should have expected that his Florida agreement encompassed separate crimes in New York about which it is silent.
Prosecutors in New York are not seeking a “redo” of the case in Florida. They are rightfully pursuing separate crimes in their own jurisdiction and seeking justice for those victims. Epstein may have been betting that after his Florida plea the New York crimes would simply go away. If so, he appears to have lost that bet.
Kathleen Parker: One thing is clear from the Jeffrey Epstein revelations: Acosta must step down
Max Boot: Epstein is in jail. But Trump continues to make a mockery of justice.
Alyssa Rosenberg: We need to know the truth about Jeffrey Epstein and his friends. All of it.
Catherine Rampell: Alex Acosta gave a pass to Epstein years ago. He’s still at it as labor secretary.
David Von Drehle: Jeffrey Epstein’s scandal of secrecy points to a creeping rot in the American justice system