Bloomberg Law
Feb. 8, 2019, 7:49 PM

Epstein Investigation Revives Justice Department Turf Battle

Chris Opfer
Chris Opfer
Jaclyn Diaz
Jaclyn Diaz
Tyrone Richardson
Tyrone Richardson

The Justice Department’s new look at Labor Secretary Alexander Acosta’s role in a controversial plea deal for hedge fund manager Jeffrey Epstein on teen sex abuse and trafficking charges is reviving an old debate: Who polices federal prosecutors?

The DOJ recently announced that it’s investigating the deal, in which Epstein served 13 months in prison on state prostitution charges and avoided harsher federal punishment on allegations he ran a teen sex ring out of his Florida home. But those findings may never become public. The Office of Professional Responsibility leading the probe isn’t required to disclose results of investigations. It also operates with the blessing of the U.S. attorney general, who oversees federal prosecutors across the country.

“I’m not confident in the outcome because it’s like the fox guarding the hen house,” Rep. Debbie Wasserman Schultz (D-Fla.) told Bloomberg Law of the new investigation.

DOJ Inspector General Michael Horowitz and some lawmakers who called for the investigation say he’s in a better position to look into lawyer misconduct complaints—such as the criticism that Acosta as a federal prosecutor let Epstein off with a slap on the wrist—because the inspector general’s office is independent and makes much of its findings public.

The results of the Epstein probe could provide some insight into a decade-old plea deal that’s received new public attention since a November Miami Herald report detailed the allegations against Epstein and what’s being called a light punishment, which included frequent work releases during his time behind bars. It also could impact the future for Acosta, who was U.S. Attorney for the Southern District of Florida and ran the DOJ’s civil rights office before President Donald Trump tapped him for the Cabinet post.

The House recently passed a bill (H.R. 202) that would shift to the inspector general the responsibility for reviewing complaints of misdoings by department lawyers. It’s not clear whether the Senate plans to consider the legislation. Spokesmen for Sens. Ben Sasse (R-Neb.) and Lindsey Graham (R-S.C.), who urged the DOJ to look into the Epstein case, wouldn’t say which office the lawmakers want to lead the probe.

The Justice Department didn’t immediately respond to Bloomberg Law’s request for comment. A spokesman for the inspector general declined to comment for this story.

Tug of War

Horowitz, who was nominated by President Barack Obama, is the latest in a line of DOJ watchdogs who have argued their office is better positioned for prosecutor misconduct investigations.

The federal law that gives the Office of Professional Responsibility the power to investigate those complaints “shields prosecutorial misconduct from review by a statutorily independent” office, Horowitz told a group of Florida Democrats in a recent letter.

When Congress in 1978 created independent inspector general offices in some federal agencies, it left the DOJ off the list. Lawmakers established an IG position in the department a decade later, but they also said the Office of Professional Responsibility would have the authority to review potential prosecutor misconduct.

The DOJ and some lawmakers have resisted previous attempts to expand the inspector general’s jurisdiction. Opponents, including former Attorney General Eric Holder, say the OPR has the manpower and “unique” legal expertise to better gauge whether prosecutors have overstepped ethical boundaries.

Corey Amundson, a former U.S. attorney in Louisiana, was tapped to run the OPR in October.

The office received nearly 3,800 prosecutor misconduct complaints from 2012 to 2017, according to DOJ data. It opened investigations in more than 400 of those cases. The department doesn’t publicly provide data on how many of the opened cases resulted in misconduct findings. The OPR closed 375 investigations over the same five-year period, the majority of which resulted in a finding of “no merit.”

The complaints stem largely from referrals by judges and from within the department. They often included allegations that prosecutors withheld evidence, abused their discretion, made improper remarks at trial, or failed to keep clients informed.

The office has occasionally made findings public. The Justice Department in 2014 suspended two prosecutors after the OPR found the lawyers “recklessly” failed to turn over exculpatory evidence to defense attorneys for former Sen. Ted Stevens in a case alleging the Alaska Republican accepted improper gifts.

The inspector general’s office, meanwhile, was recently in the public spotlight. Horowitz issued a report in June finding that former FBI Director James Comey mishandled an investigation into Hillary Clinton‘s alleged misuse of a private email server while she was serving as secretary of state.

Fact-Finding Needed

Calls for the Epstein investigation focus mainly on how the billionaire managed to get such a light sentence and why two unidentified people got immunity as part of the agreement.

“There really needs to be some fact-finding about what were the reasons that this deal happened,” Mimi Rocah, a former assistant U.S. attorney in Manhattan, told Bloomberg Law. “Prosecutors know a lot about cases that we can’t see on the surface. It may be that every one of their witnesses would have been horrible and tanked and they needed to plead this out. It doesn’t seem like that’s the case, but that’s something we need to know.”

Acosta has been largely silent on the Epstein case but has previously said prosecutors were subjected to an “assault” by Epstein’s aggressive defense team. A DOL spokeswoman told Bloomberg Law the labor secretary welcomes the new investigation.

“For more than a decade, this prosecution has been reviewed in great detail by newspaper articles, television reports, books, and Congressional testimony,” the spokeswoman said in an email. “Department of Justice leadership, likewise, reviewed the matter at the time, and the Department has continued to defend the Southern District of Florida’s actions across three administrations and several attorneys general on the grounds that the actions taken were in accordance with Department practices, procedures, and the law.”

To find professional misconduct, the OPR would have to determine that Acosta intentionally flouted his ethical responsibilities or acted with reckless indifference. That’s not easy to prove.

“You don’t want to punish accidents or mistakes,” Rocah said. “We have to be careful to give prosecutors discretion but also check abuses.”

The probe will likely take a year or more because the findings then go to the DOJ’s Professional Misconduct Review Board to determine appropriate disciplinary action, which can include censure, suspension, or termination. But it’s not clear whether the department has the power to take any action against lawyers who are no longer at department, aside from potentially referring them to the state bar, former DOJ attorney Peter Henning told Bloomberg Law.

“This becomes more of a matter of negative publicity,” Henning said.

To contact the reporters on this story: Chris Opfer in New York at; Jaclyn Diaz in Washington at; Tyrone Richardson in Washington at

To contact the editor responsible for this story: Martha Mueller Neff at