By Noreen Marcus, FloridaBulldog.org
New information in a government report deepens the mystery of who exactly federal prosecutors protected with their 2007 sweetheart deal for sexual predator Jeffrey Epstein.
A recently released internal Department of Justice (DOJ) report tells an exhaustive, twisty story about how the deal came together for the South Florida U.S. Attorney’s Office led by Alexander Acosta, on one side, and a team of high-powered defense lawyers intent on keeping the wealthy Epstein, a friend of heavy hitters like Donald Trump and Bill Clinton, out of prison.
Team Epstein achieved its goal.
“This whole thing is a total whitewash. It’s an embarrassment,” Joel Hirschhorn said of the 348-page DOJ report he reviewed at Florida Bulldog’s request. The longtime criminal defense lawyer, a past president of the American Board of Criminal Lawyers, has no connection to the Epstein case.
Hirschhorn pointed out many instances of Acosta and his assistants remembering clearly only those details that made them look good.
“It’s a case of situational early dementia syndrome,” he joked. And he noted references to questionable, off-the-record meetings of lawyers from both sides that the DOJ didn’t question.
“It’s really unfortunate an independent special prosecutor wasn’t appointed to do this investigation,” Hirschhorn said, “because I suspect the findings might be different.”
‘Extremely disturbing’ tactics
The DOJ report offers a close look at what lead prosecutor Ann Marie Villafana did and how she explained her actions. It clears her and her colleagues of wrongdoing.
Yet emails showing Villafana’s alliance with Epstein’s lawyers, along with her self-serving excuses for agreeing to forgo prosecuting any Epstein cohort who might be equally guilty, raise questions and concerns.
“The things that she was doing were extremely disturbing,” said an investigator on the Epstein case whom Florida Bulldog is not identifying because of its sensitivity.
He said Villafana worked too closely with Epstein’s defense team — Roy Black, Ken Starr, Alan Dershowitz and other legal luminaries. She copied them on draft indictments to get their input, arranged to minimize media exposure when Epstein surrendered, and even gave a defense lawyer her personal email address, the investigator said.
“I don’t know any career prosecutor that would do that, especially dealing with a trafficker of kids,” he said.
Bad judgment, no foul
Villafana told DOJ investigators that her friendly interactions with defense lawyers reflected her personality and “her commitment to complete the task her supervisors had assigned to her,” the report says.
“I’m a Minnesota girl, and I prefer not to be confrontational until I have to be,” Villafana said. But she professed to be firm on the issues, often saying, “No I will not make that change.”
Villafana prepared a 53-page indictment that was never filed. Instead, Epstein, who faced a possible life sentence, wound up spending 13 months shuttling between his office and the Palm Beach County Jail, where he slept and sometimes hung out.
The DOJ report concludes that Villafana’s boss Acosta showed poor judgment when he approved the non-prosecution deal, but didn’t violate any professional norms — mostly because there are no clear standards.
“One good thing that could come out of this is perhaps the [DOJ’s] Office of Professional Responsibility will develop new standards so that lawyers know it’s not seemly to meet off-campus with the other side,” Hirschhorn said. He said he’s never done that in 53 years of practicing criminal defense law.
Acosta and Villafana resign
Acosta has defended the Epstein deal as the best possible outcome, given victims’ reluctance to cooperate and the goal of branding Epstein a sex offender without retraumatizing the young women he abused by putting them through a trial.
Still, hounded by the public outcry following a game-changing Miami Herald series about Epstein’s victims and his lenient treatment, Acosta resigned from his Cabinet post as U.S. Labor Secretary in July 2019.
After almost 20 years as a prosecutor, Villafana resigned the next month and is now a supervisor in the Phoenix, AZ office of the U.S. Department of Health and Human Services.
Villafana was out of sight and silent about the Epstein deal until the DOJ report surfaced on Nov. 10. Then she had Ty Kelly, a criminal defense lawyer, speak to the media for her. Kelly represented Villafana during the DOJ investigation that produced the report.
The Herald quoted Kelly in a Nov. 20 article headlined, “One prosecutor tried to put Epstein away for decades. Powerful men maneuvered to stop her.”
Claim of shared victimhood
“Ms. Villafana believes the injustice in this case is a direct result of implicit biases based on gender and socioeconomic status — biases that allowed Mr. Epstein’s defense team unparalleled access to the decision-makers at the Justice Department, while the victims, Ms. Villafana, and the FBI agents working the case were silenced,” Kelly said in a statement to the newspaper.
But the investigator who worked on the case was incredulous about Villafana’s claimed victimhood. “It took her 13 years to come out and complain?”
Hirschhorn questioned whether Villafana was marginalized at all, because in his experience, line prosecutors like her call the shots.
He said through the tenures of at least a dozen U.S. Attorneys, “I’ve probably gone up the chain over the line prosecutor maybe three, four times and never asked for a meeting with the U.S. Attorney because they weren’t the trial lawyers, they were policy guys.”
He said the vast majority of line prosecutors he’s worked with “do their jobs professionally and resist any political or influence-peddling pressure.”
‘It doesn’t hurt us’
The notorious Epstein deal immunized him and “any potential co-conspirators of Epstein” from prosecution for federal crimes. In exchange, he would plead guilty to minimal state charges.
Hirschhorn called the co-conspirator provision “bizarre.” It is “trickle-down transactional immunity,” which “rarely happens unless there’s some kind of a quid pro quo,” chiefly, cooperation with the prosecution.
But shadowy unnamed co-conspirators can’t cooperate.
“Why in the world did the government agree to this unless they were pandering to the defense lawyers?” Hirschhorn asked.
Villafana told DOJ investigators she considered the clause innocuous, saying at one point, “It doesn’t hurt us.” Also, she believed defense lawyers who said Epstein “wanted to make sure that he’s the only one who takes the blame for what happened.“
And since she was “unaware of anyone else who could or would be charged,” she saw no reason to object to a promise not to prosecute “other, unspecified co-conspirators,“ the report says.
DOJ investigators found the clause “troubling,” but decided “the evidence does not show” that prosecutors “agreed to the non-prosecution provision to protect any of Epstein’s political, celebrity, or other influential associates.”
Appellate hearing on Zoom
How the 2007 deal transpired is under review by the full 11th Circuit federal appeals court in Atlanta, which heard arguments via Zoom on Thursday.
This case filed on behalf of Courtney Wild, one of the dozens of underage girls Epstein sexually exploited, could finally determine whether the government faces any penalty for violating the U.S. Crime Victims’ Rights Act (CVRA).
In February 2019, West Palm Beach U.S. District Judge Kenneth Marra ruled that prosecutors illegally prevented lawyers for Epstein’s victims from learning about and influencing the plea negotiations. The CVRA requires transparency and participation.
The lawyers described Villafana’s role in the coverup in a court document. In mid-June 2008 she asked victims’ lawyer Bradley Edwards to explain why Epstein’s crimes “deserved to be prosecuted.”
The motion says Villafana failed to mention that the non-prosecution agreement had already been signed, or that Epstein was about to end the criminal proceedings by pleading guilty to state charges, which he did on June 30, 2008.
Epstein runs out of luck
Yet this argument rages on: What does violating the CVRA mean? The government insists the law gives Epstein’s victims no remedy — and this theory has persuaded the 11th Circuit so far.
The victims want the deal rescinded, which could expose any co-conspirators to identification and criminal charges.
The CVRA violation certainly benefited Epstein. After pleading guilty to two state prostitution felonies and serving 13 months of an 18-month sentence in relative comfort, he was a free man.
But his luck eventually ran out in New York, where Epstein was arrested in July 2019 for sex trafficking. Weeks later he was found hanging in his Manhattan jail cell, an apparent suicide.
Meanwhile, U.S. authorities have failed to secure an audience with Britain’s Prince Andrew to discuss his pal Epstein. The scandal drove Queen Elizabeth’s middle son out of public life.
The only related prosecution that survives Epstein is that of his onetime girlfriend and accused madam Ghislaine Maxwell. She’s housed at the Metropolitan Detention Center in Brooklyn, held without bond after pleading not guilty to procuring three girls for Epstein to abuse in the mid-1990s. Her trial is set for July.
Looking back at party time
Over the years since the 2007 plea deal, other VIPs have emerged as Epstein’s companions during his depraved partying days. To date none has proven to be the “potential co-conspirators” the agreement references.
Several of Epstein’s victims say he passed them around to his friends like sexual party favors. But the DOJ report says only crimes involving Epstein came to light before the 2007 plea deal.
The report does note, however, that investigators were aware of the “well-known contacts” Epstein cultivated. He entertained prominent men at his lavish homes, on his jet and at his private enclave in the U.S. Virgin Islands.
For example, outgoing President Trump hosted Epstein at Mar-a-Lago in their Palm Beach neighborhood. And former President Clinton took more than 10 trips on Epstein’s plane “The Lolita Express” throughout 2002-2005, according to flight logs cited by victims’ lawyer Edwards in a 2010 affidavit.
Celebrity lawyer and Trump defender Dershowitz, who helped negotiate the 2007 plea deal, has admitted spending time at his friend Epstein’s Palm Beach mansion. Dershowitz is still fighting ferociously to clear his name.
Judge Hull targets Villafana
Villafana remained above the fray until she figured into a federal appellate judge’s dissent eight months ago. The dissent led to the phenomenon of the entire 11th Circuit panel examining how the justice system treated Epstein’s victims.
U.S. Circuit Judge Frank Mays Hull disagreed with the two judges who outvoted her that the CVRA provides no remedy without an indictment — so when Acosta decided against filing one in the Epstein case, he effectively robbed the victims of their day in court.
“The CVRA is not as impotent as the Majority now rewrites it to be,” Hull declared in her 60-page dissent. Later the full court voted to review the panel opinion, leading to Thursday’s hearing.
Hull singled out Villafana for criticism, writing that she worked with defense lawyers to sideline Epstein’s victims.
“Villafana suggested strategies to conceal portions of the plea deal from the courts,” her dissent says. The agreement even states it “will not be made part of any public record.”
Explaining a smoking email
Hull’s dissent exposes a smoking gun. “I would prefer not to highlight for the [trial] judge all of the crimes and all of the other persons that we could charge,” Villafana said in an email to an Epstein lawyer just before finalizing the 2007 deal.
Villafana didn’t respond to Hull, but she discussed the email with DOJ investigators.
“Villafana was concerned that an overly detailed federal plea agreement would prompt the court to require the government to provide further information about the uncharged conduct, which might lead Epstein to claim the government breached the agreement by providing information to the court not directly connected to the charges to which he was pleading guilty,” the report says.
In other words, Villafana wanted to avoid jeopardizing the Epstein plea deal by inviting the judge to question prosecutors about the “uncharged conduct” of Epstein’s “potential co-conspirators.”
Thirteen years later, Epstein’s victims haven’t stopped looking for justice. Hirschhorn suggested the DOJ does them a disservice by elevating legalistic form — if there’s no standard for it, it’s OK — over substance.
“How about objective, basic dignity and respect for the victims?” he asked. “What Epstein and his creepy, degenerate associates did robbed these young ladies of their self-respect. And one way they get it back is by a vigorous prosecution of the evildoers.”