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Like giving Ivy League schools $26 billion in federal funding over a six-year period.

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https://www.nationalreview.com/2019/07/jeffrey-epstein-case-double-jeopardy-rules/Double-jeopardy rules almost certainly prohibit settling a federal case and then prosecuting it again in federal court.

A lex Acosta did a bad job on the Jeffrey Epstein case. This column was nearly finished when news broke Friday that he would resign as labor secretary. I was going to argue that his lapses did not justify joining the nakedly political mau-mauing by Democrats who have no interest in exploring the behavior of Democrats who are neck-deep in a monstrous pedophile’s activities. My friend Jennifer Braceras has ably addressed that point in a Washington Examiner column. I was also going to add that I’d shed no tears if President Trump forced Acosta out — easy for me to say, since I think (a) he should never have been nominated in the first place, and (b) his commitment to Trump’s deregulation agenda has never been sufficiently ardent.

Under the circumstances, 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.

Double Jeopardy
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.

https://www.gatestoneinstitute.org/14536/epstein-acosta-resignation

Experienced lawyers with whom I have discussed the case — both prosecutors and defense attorneys — worry that the thumb of media and political pressure will be placed on the scales of justice when it comes to the exercise of prosecutorial discretion and the decision to try or settle a case.

Consider the situation of a prosecutor today or tomorrow who has a weak federal case involving sexual allegations. He has two options: the first is he can try to make a deal based on the relative strength of his case and of the defense case. But if he makes that deal, he risks criticism for being too soft on sex offenders. His second option is to take the weak case to trial and risk losing. But even if he loses, the risks to him personally are less great because he can blame the loss on the judge or the jury. A deal, on the other hand, is totally attributed to the prosecutor, as evidenced by the Acosta resignation. So, a simple cost-benefit analysis will incline a prosecutor to litigate rather than settle.

In the post-Acosta world, prosecutors will bring cases to trial even if the likelihood of a conviction is questionable, as it was in the Epstein case. The result of this change will be more trials, more crowded courtroom dockets and fewer convictions. That is not good for defendants, victims or for the rule of law.

The forced resignation of Alex Acosta based on the plea deal that he made with Jeffrey Epstein’s lawyers (of which I was one) may have serious unintended effects on our system of criminal justice. The criticism of Acosta — whether warranted or not — for making the deal will cause other prosecutors to go to trial in relatively weak cases in which the chances of losing are considerable.

The deal accepted by Acosta was based on the weakness of the government’s federal case. In order for sex with underage persons to be prosecuted federally, as distinguished from prosecution by a state, there has to be compelling evidence of an interstate nexus. Merely having sex with underage females in a local context does not constitute a federal crime. In the Epstein case, this would have required credible testimony or documentary evidence proving transportation of underage females in interstate commerce, or the use of interstate communications such as telephone calls, emails, or the wiring of funds. There was scant evidence of such an interstate nexus in the Epstein case at the time the deal was made. Perhaps there is more now, but that remains to be seen.