Andy McCarthy: Acosta’s sweetheart deal likely to foreclose Epstein’s SDNY prosecution

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Double-jeopardy rules almost certainly prohibit settling a federal case and then prosecuting it again in federal court.

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I’ll spare you a few hundred words of critique on Acosta’s indecorous performance. Instead, to cut to the chase, I do not believe we can yet total up the wages of the sweetheart deal he cut for Epstein while he was U.S. attorney for the Southern District of Florida (SD-Florida). The commentariat is glibly assuming the courts will give the feds a second bite at the apple by allowing the U.S. attorney for the Southern District of New York (SDNY) to prosecute the charges that Acosta forfeited. I don’t think so.

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While the SDNY indictment may be new, Epstein’s crimes are not. They are the same offenses from which Acosta agreed to spare Epstein from federal prosecution if he pled guilty to state prostitution charges — which Epstein proceeded to do, in reliance on Acosta’s commitment. There is thus a very good chance, based on the Constitution’s guarantee against double jeopardy, that the SDNY case against Epstein will be voided by the SD-Florida non-prosecution agreement (non-pros).

To be sure, the SDNY has a counterargument, and it will be vigorously made. It has two components. First, there is language in the non-pros that appears to limit the agreement to SD-Florida, to wit: “prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida”

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Therefore, prosecutors will argue that the 2007 SD-Florida non-pros does not bar a 2019 SDNY indictment arising out of the same conduct and charging the same offenses.

I’m skeptical . . . and I think the SDNY is, too, notwithstanding the brave face prosecutors put on this week. They have carefully drafted an indictment far narrower than the SD-Florida’s contemplated case. If prosecutors really believed that there was no double-jeopardy problem, they’d have no such hesitation: They’d throw everything the FBI ever had at this sociopath. They know they are on thin ice.

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I suspect it is too thin. There is a great deal in the non-pros that cuts against the suggestion that it was limited to the SD-Florida. Moreover, unlike Professor Jonathan Turley (among others), I believe the Supreme Court’s recent double-jeopardy ruling — in the Gamble case (addressed in this column), which involved the “dual sovereignty” doctrine — hurts, rather than helps, the SDNY’s position.

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With astonishing chutzpah on Tuesday, Acosta tweeted that he is “pleased that NY prosecutors are moving forward with a case based on new evidence.” In point of fact, the non-pros he authorized was patently designed to foreclose the possibility of any federal prosecution of Epstein.

Notice that he says he’s glad the SDNY has found “new evidence.” You know why he has to say new evidence? Because he is not in a position to say the SDNY has found a new offense. If the SDNY had a new offense, prosecutors would have charged it and avoided the double-jeopardy bar. Instead, they have apparently collected new evidence of the same old offense on which Acosta already gave away the store.

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New evidence that merely bolsters proof of an already prosecuted crime is insufficient.

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SDNY and SD-Florida Are Parts of the Same Sovereign

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While successive prosecutions by different sovereigns do not violate the letter of the Fifth Amendment, they are in tension with its double-jeopardy clause’s conception of fundamental fairness. Because of that, despite the dual-sovereignty doctrine, many states do not permit successive prosecutions if a person has already been tried by federal authorities or those of another state. That’s how seriously we take double jeopardy.

Now, contrast Epstein’s case. It is because of dual sovereignty that Epstein’s top-shelf legal team worked in 2007 to dispose of state and federal liability simultaneously. The avoidance of successive prosecutions is precisely what he bargained for — he pled guilty and served time on state charges on the condition (to which Acosta, on behalf of the Justice Department, agreed) that there would be no federal prosecution.

Consequently, the issue presented by the new SDNY indictment is not dual sovereignty; it is straightforward double jeopardy. SD-Florida and SDNY are different federal venues, but they are part of the same sovereign.

That sovereign, the United States, is now attempting to proceed with a second prosecution for the same offense.

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I do not believe this Supreme Court would approve successive prosecutions by different districts of the same sovereign. And that is significant here. In the double-jeopardy context, the constitutional violation is not just to convict or acquit a defendant a second time; it is to subject him to any facets of prosecution for a previously prosecuted offense.

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