Yesterday Andrew McCarthy posted an article at The National Review about the Jeffrey Epstein case. Andrew McCarthy is the former Chief Assistant United States Attorney in the Southern District of New York who led the terrorism prosecution against the “Blind Sheikh” (Omar Abdel Rahman) and eleven other jihadists for conducting a war of urban terrorism against the United States that included the 1993 World Trade Center bombing and a plot to bomb New York City landmarks. He served as a prosecutor for 20 years. He has testified before Congress as an expert on issues of constitutional law, counterterrorism, and law-enforcement.
Below are some of his observations about the case against Jeffrey Epstein:
On Monday, Geoffrey Berman, the U.S. attorney for the Southern District of New York, announced that his office has now charged Epstein. 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” (emphasis added). Here, “deferred” effectively means forfeited — the same effect for double-jeopardy purposes as a conviction or acquittal — because of Epstein’s compliance with the requirement that he plead guilty in the state case. Second, there is jurisprudence in the Second Circuit (which controls in the SDNY) holding that one federal district’s agreement does not bind another.
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.
Mr. McCarthy’s evaluation of the situation is not encouraging. I hope he is wrong, but his history and knowledge suggest he is probably right.
Please read the entire article to see the full argument. It would be a shame if this sleazeball escaped justice twice. I know he is innocent until proven guilty, but he has already been proven guilty–he just didn’t have to pay any real price for his horrific behavior.