But what has Acosta said in his defense? How has he explained the situation? Let’s recap.
The controversy stems from the terms and timing of the 2007 plea deal. Facing dozens of accusations, Epstein and a high-powered legal team struck a bargain that included Epstein pleading guilty to two felony solicitation charges, agreeing to 18 months in prison (he eventually served 13) and registering as a sex offender. The deal also, importantly, both closed an ongoing FBI investigation and kept the case under seal, including by not notifying Epstein’s accusers.
The Justice Department has now found enough evidence to indict Epstein on charges involving alleged conduct between 2002 and 2005 and spanning Epstein’s homes in both Palm Beach, Fla., and New York. Given this alleged conduct occurred years before the plea deal with Acosta, it has raised new questions about the deal’s appropriateness.
Acosta’s handling of the case has been called into question before, but in December the Miami Herald published a blockbuster story revealing potential deferential treatment he and other prosecutors gave Epstein’s lawyers — especially when it came to keeping the matter private. Around the same time, the FBI released a document stating that, at the time of the plea deal, investigators were still interviewing witnesses and alleged victims “from across the United States.” The obvious question from there is: Was it right to cut such a lenient deal when there was apparently much more to be learned and eventually charged?
Acosta has rarely commented on the matter, and when he has, he has declined to do so in detail, sometimes citing ongoing litigation and a fading memory. He wrote a lengthy letter in 2011 and was asked about it in 2017, at his confirmation hearing to become labor secretary. It also came up in 2018 at a hearing of a House Appropriations subcommittee.
Acosta sent his 2011 letter to the Daily Beast, whose reporters were digging around on the case. In it, he suggested the evidence that came out after the plea deal has led to some revisionist history. “Some may feel that the prosecution should have been tougher,” he said. “Evidence that has come to light since 2007 may encourage that view.”
But, he added, it was the right decision at the time, and he argued that going to trial would have led to a reduced likelihood of success. “I supported that judgment then, and based on the state of the law as it then stood and the evidence known at the time, I would support that judgment again,” he said.
That statement looms large, especially now that we now know the Justice Department has uncovered evidence significant enough — from the same time period — for the kind of lengthy indictment Acosta didn’t pursue at the time.
In the 2011 letter, Acosta also came out strongly against another controversial aspect of Epstein’s treatment: his ability to leave jail during the day and return at night. Acosta noted that state authorities were in charge of that — not federal — but added that “without doubt, the treatment that he received while in state custody undermined the purpose of the jail sentence.” (He would later, in his 2017 testimony, call the arrangement “awful.”)
Perhaps the most newsworthy part of the letter was what Acosta said about Epstein’s lawyers. He cast the team, which included Alan Dershowitz and Clinton special prosecutor Kenneth Starr, as ruthless and willing to dig into the personal lives of the prosecutors they were working against. He called it a “year-long assault” and said that while he tried to be cordial with his opponents after the case was closed, “I confess that has been difficult to do fully in this case.” He also said those aggressive tactics didn’t ultimately influence his decisions one way or the other.
After serving as dean of Florida International University’s law school, Acosta was nominated in 2017 as President Trump’s labor secretary. In his confirmation hearing, the Epstein case was only mentioned by one senator, Democrat Tim Kaine of Virginia.
Citing a Washington Post story about Acosta’s handling of the Epstein case, Kaine probed for details. Acosta suggested he and his fellow federal prosecutors actually stepped in to prevent Epstein getting off too easy, noting a state grand jury had recommended only a single count of solicitation involving minors.
Kaine asked him about reports that his office had drafted an indictment that was never filed. Acosta said such a draft indictment “does not consider, often, the strength of the underlying case” and that decisions need to be made about how likely a case is to succeed. In this case, he suggested, the call was clear to those involved.
But when Kaine asked whether it was a “consensus” decision, Acosta downgraded it to a “broadly held” one:
ACOSTA: At the end of the day, based on the evidence, professionals within a prosecutors office decide that a plea that guarantees that someone goes to jail, that guarantees that someone register generally, and that guarantees other outcomes is a good thing. And so...
KAINE: And -- and was that a consensus decision in your office?
ACOSTA: It was a broadly held decision, yes.
This, notably, appears to be at odds with what at least one former investigator has since told the Miami Herald. The agent, who now works for an attorney representing Epstein’s accusers, said there was dissension over Acosta’s decision:
Mike Fisten, a former Miami-Dade police sergeant who was also a homicide investigator and a member of the FBI Organized Crime Task Force, said the FBI had enough evidence to put Epstein away for a long time but was overruled by Acosta. Some of the agents involved in the case were disappointed by Acosta’s bowing to pressure from Epstein’s lawyers, he said.
“The day that a sitting U.S. attorney is afraid of a lawyer or afraid of a defendant is a very sad day in this country,’’ said Fisten, now a private investigator for [Brad] Edwards (one of the accusers’ attorneys).”
In a later exchange, Kaine pressed Acosta on why the deal allowed for the case to be kept under seal. Acosta cited pending litigation but said such things are “part of the give-and-take of a negotiation.”
But when Kaine pressed him and suggested that making the case public would allow more potential victims to come forward, Acosta seemed to give a little. He suggested society had changed when it came to how much it values disclosure in such cases and admitted such an arrangement can lead to “suspicion.”
“The public expectation today is that things be very public,” Acosta said. “And if there is something that I have learned or thought about is how careful someone should be when something is not made public. Because often a very positive outcome — again, not talking about this case, but generally — a very positive outcome can become a negative outcome. Not because of a change in the underlying substance, but because by something not looking public, it is looked at with suspicion.”
Acosta was also pressed on this point in a 2018 hearing with the House Appropriations subcommittee, when Rep. Katherine M. Clark (D-Mass.) asked repeatedly if he regretted keeping the deal secret. Acosta did not confirm or deny it, but defended his actions:
CLARK: How, as Secretary of Labor, can you tell this panel and the American people that you can responsibly oversee this budget, the Department of Labor and including human trafficking? Is there no answer?
ACOSTA: Is that a question?
CLARK: That was a question.
ACOSTA: So, as I was saying, the Department of Justice for the past 12 years has defended the actions of the office in this case. The facts in this case were presented to a grand jury that initially recommended -- not initially, that actually recommended a charge that would have carried no jail time at all. And at the end of --
CLARK: Do you regret making this deal in secret?
ACOSTA: At the end of the day --
CLARK: Do you regret making this deal in secret?
ACOSTA: Congresswoman, if I could finish. At the end of the day, Mr. Epstein went to jail. Epstein was incarcerated. He registered as a sex offender. The world was put on notice that he was a sex offender, and the victims received restitution.
Acosta sent tweets on Tuesday morning responding to the new charges and reiterating his previous explanation of how he handled the case.