Hollywood has long played the game of “six degrees of separation from Kevin Bacon,” exploring the connections between the actor and other celebrities and individuals. The rage in Washington this week is exploring all the degrees of separation from disgraced financier Jeffrey Epstein, following his federal indictment in New York on sex trafficking charges.
The degrees involving Epstein are closer, and the names include more highly placed figures, by design. Epstein has collected art, cars, planes, mansions, and, of course, underaged girls. However, the thing that the billionaire spent most of his time and money collecting was powerful men, many of whom flew on his infamous plane, known as the “Lolita Express” for its crew of underaged girls. He referred to them as his “collection” and told friends, “I invest in people, be it politics or science. It is what I do.”
They were, in effect, his insurance policy. No one would want to see him prosecuted when plane logs or island guest books listed top names in the political and business worlds. None of the people Epstein collected and cultivated for years will acknowledge any real connection. These degrees of closeness could well prove as important legally as politically. So while Epstein warrants little sympathy, his prosecution may raise more troubling issues of double jeopardy, made worse by a new Supreme Court decision.
For the record, I have long criticized the secret deal that Epstein secured in 2007 with former United States attorney for the Southern District of Florida, and current United States labor secretary, Alexander AcostaAlex Alexander AcostaOn The Money: Trump slams relief bill, calls on Congress to increase stimulus money | Biden faces new critical deadlines after relief package | Labor rule allows restaurants to require broader tip pooling Labor rule allows restaurants to require broader tip pooling Federal litigator files complaint alleging Labor secretary abused his authority MORE. The deal was a disgrace. It not only allowed Epstein to avoid a lengthy prison stint but, as recently found by a federal court, it violated federal law by hiding the details from more than 30 identified victims of Epstein.
However, one does not have to like Epstein to acknowledge the curious posture of the prosecution. In the Southern District of Florida, the Justice Department still defends the deal Acosta put together as valid despite the illegality of his actions. In the Southern District of New York, the Justice Department claims it is not bound by the agreement. Epstein, of course, insists his nonprosecution agreement and criminal plea covered much of the same period as the latest two count New York indictment this week.
Under the extraordinary agreement, Epstein pled guilty to state charges, accepted 13 months in jail, and registered as a sex offender. He not only avoided a life sentence but secured an agreement to spend 12 hours a day, six days a week, out of jail on “work release.” He simply had to sleep in jail. Moreover, the Southern District of Florida also agreed that he would not be prosecuted federally. Now, the Justice Department is insisting that was a deal with just one district and does not count in another district.
The fact that Acosta cut such a ridiculous deal with a serial sex abuser does not mean the deal is invalid. Cutting such nonprosecution deals are also usually meant to bind the Justice Department as a whole. Yet, this agreement said “in this district,” three words likely to come back to haunt Epstein. The Justice Department is basically saying his legal team failed to close a major loophole, since the agreement “expressly referred to that federal district” and did not “purport to bind any other office or district.” There is also Second Circuit case law enforcing such limiting language.
The fact that there are only two counts in the new federal indictment this week may indicate that New York prosecutors are looking for crimes not covered by the earlier agreement, including new charges connected to photos of allegedly underaged girls that were reportedly found in the safe of Epstein. To that end, they displayed a huge photo of Epstein at their press conference and encouraged any unknown victims to contact them.
Epstein has raised another possible claim under the double jeopardy clause of the Fifth Amendment, that he is being prosecuted twice for the same underlying conduct in both cases. The timing for that argument could not be worse for him. The Supreme Court ruled in Terance Gamble versus United States last month that “dual sovereignties” like Florida and the federal government can prosecute individuals for the same underlying acts without violating protections of the Constitution.
Some of us have been highly critical of that practice as effectively gutting the protection. Indeed, the danger of that happening applies not only to despised individuals like Epstein. As Justice Neil Gorsuch wrote in his dissent, “When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial who suffer first, and there is nothing to stop them from being the last.” This is a key point.
Faced with rising disgust over its prior agreement with Epstein, the Justice Department has decided to ignore the obvious purpose of the original nonprosecution agreement and take another shot at him. Weirdly, Acosta, the man who approved the sweetheart deal in the first place, applauded the indictment as creating the possibility to “more fully bring” Epstein to justice. That was his very job as United States attorney in the first place.
Attorney General William BarrBill BarrVirginia governor's race enters new phase as early voting begins Clinton lawyer's indictment reveals 'bag of tricks' Attorney indicted on charge of lying to FBI as part of Durham investigation MORE is also placing great significance on the separate offices in the two districts. Barr has recused himself from an ongoing review of the plea agreement under the Southern District of Florida because his old law firm, Kirkland and Ellis, represented Epstein, although Barr himself had no role in the case. However, Barr will not recuse himself from the New York case, which is proceeding outside of the plea agreement. It could prove a precious distinction in the case, since the earlier agreement will be raised in New York proceedings.
It is a fitting level of chaos surrounding a man who actively sought to intermingle people in different aspects of his life. Indeed, the strange degrees of separation include the family of the attorney general. Epstein was a college dropout but was still hired in 1973 to teach calculus and physics at the prestigious Dalton School in Manhattan. The man who hired him for the job was headmaster Donald Barr, the father of William Barr.
The six degrees of Kevin Bacon is premised on the idea that everyone is connected by six people or less. As the list of interested parties grows, that seems true in the case of Epstein. But there is a great danger in creating a law of a different kind. The law should not depend on how powerful or unpopular a defendant may be. Epstein twisted the law in his favor with the help of Acosta. The law became more twisted when the office of Manhattan District Attorney Cyrus Vance Jr. argued in court eight years ago that Epstein should not be registered as a top level sex offender despite his dozens of victims, a leniency angrily rejected by the judge.
With the New York case, there is an effort to twist the law to get a second chance at prosecuting Epstein, despite his nonprosecution agreement and earlier plea agreement. It is quite likely to succeed, given the recent Supreme Court ruling. But prosecution by popular demand comes with its own dangers. Epstein made our criminal laws a matter for his personal convenience. We should care to not make it a matter of legal contrivance.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.