Epstein Data Wiki

Submission to the Deputy Attorney General

Properties1
tagstopic, non-prosecution-agreement, usao-sdfl, department-of-justice, odag, kirkland-ellis, 2007, 2008

14 min read

What is recordedA defence submission asking the Department of Justice’s Office of the Deputy Attorney General (ODAG) to end federal involvement in the Epstein investigation, and the Department’s internal handling of it12
AuthorKirkland & Ellis LLP, transmitted “on behalf of Jay Lefkowitz and Ken Star[r]” by firm attorney Ami Sheth; the submission itself carries no signature or date2
Argued against charges under18 U.S.C. §§ 1591, 2422(b) and 2423(b)1
TransmittedBy email, Ami Sheth to John Roth (ODAG), June 20, 2008, 12:26 p.m., attaching the “Principal Submission” and three other documents2
Routed inside the DepartmentSame afternoon, Roth forwarded it to two Southern District of Florida prosecutors; separately, that evening, U.S. Attorney Alex Acosta forwarded his own copy with the instruction “Pls print”23
ResponseJune 23, 2008: after reviewing submissions from both the defence and the U.S. Attorney’s Office, the Office of the Deputy Attorney General told defence counsel the Deputy Attorney General would not intervene4
Earlier correspondence in the same campaignA November 8, 2007 letter asserting Epstein’s compliance with the Non-Prosecution Agreement, and a December 11, 2007 fax of three further letters to Acosta56
OutcomeEpstein pleaded guilty in state court on June 30, 20084
Not established hereAny reasoning the Deputy Attorney General gave beyond the fact of the decision; the content of three of the four documents attached to the June 20 email, which are not in the set of documents this page draws on

Between November 2007 and June 2008, Jeffrey Epstein’s defence team pressed the Department of Justice, first the U.S. Attorney’s Office for the Southern District of Florida and then Main Justice, to end the federal investigation into him. The campaign culminated in a formal written submission to the Office of the Deputy Attorney General, transmitted by email on June 20, 2008. The Department’s Office of Professional Responsibility (OPR) later wrote that defence counsel “sought and obtained review by the Department’s Criminal Division and then the Office of the Deputy Attorney General,” and that after reviewing submissions from both sides, “on June 23, 2008, the Office of the Deputy Attorney General informed defense counsel that the Deputy Attorney General would not intervene in the matter.”4 Epstein pleaded guilty in state court a week later.4

The submission

The document itself, headed “SUBMISSION TO THE OFFICE OF THE DEPUTY ATTORNEY GENERAL / IN THE MATTER OF JEFFREY E. EPSTEIN” on Kirkland & Ellis letterhead, carries no date, no addressee’s name and no signature.1 Its content places it after June 2, 2008: it repeatedly invokes two Supreme Court decisions issued that day, United States v. Santos and Cuellar v. United States, for the proposition that ambiguous federal criminal statutes must be read narrowly.1 Its date and its status as a submission actually sent come from the covering email of June 20, 2008, described below, whose sender wrote that “we have attached the following documents to this email: (1) Principal Submission, (2) Summary of Misconduct, (3) Response to FAUSA” and then a redacted name, “Letter and (4) Response to CEOS’s Letter by Stephanie Thacker.”2 Only the Principal Submission is among the documents this page draws on; the other three are not.

The submission opens by describing Epstein as “a successful businessman and noted philanthropist with no prior criminal record” who had “been investigated for potential violations of 18 U.S.C. §§ 1591, 2422(b) and 2423(b),” and states that “[s]ince the limited review conducted by CEOS” (the Department’s Child Exploitation and Obscenity Section) the Santos and Cuellar decisions “have revitalized the bedrock principles that federal criminal statutes must be narrowly construed.”1 Its central argument is that Epstein’s conduct “falls within the heartland of historic state police and prosecutorial powers” and that, absent a federal nexus it says is missing, “matters involving prostitution have always been treated as state-law crimes even when they involve minors.”1 It argues, statute by statute, that the government could not prove the elements of § 2422(b) (use of an interstate facility to persuade, entice or coerce a minor), § 1591 (sex trafficking, which it says “has also been previously reserved for prostitution rings involving violence, drugs and force”) or § 2423(b) (interstate travel for the purpose of illicit sexual conduct, which it says did not describe a man returning to his own home).1 It further argues that Florida’s one- and three-year statutes of limitations barred state prosecution of conduct before mid-June 2005 and that this, in its reading of § 2422(b), removed most of the alleged conduct from federal reach as well.1

A separate section argues selective and disparate treatment, invoking the Department’s Petite Policy against successive federal prosecution after a state has acted, quoting a November 9, 2007 letter from a Principal Deputy Assistant Attorney General to the House Judiciary Committee that “prostitution-related offenses have historically been prosecuted at the state or local level,”7 and comparing Epstein’s case to federal prosecutors’ non-involvement in decades of clergy-abuse cases and to a Miami-Dade case, State v. Kutun, in which a former city attorney pleaded guilty to state charges over “having sex with underage prostitutes and videotaping the sessions” with no federal involvement.8 The submission’s final section summarised sworn deposition testimony obtained in related civil litigation, which it characterised as supporting each of its statutory arguments; the witnesses’ names are blacked out throughout the copy in the release, and this page does not reproduce that testimony.1 It closes: “Accordingly, we respectfully request that you direct the U.S. Attorney’s Office for the Southern District of Florida to discontinue its involvement in this matter, and return responsibility for this case to the State of Florida.”9

Nothing in the submission is a finding of fact. It is one side’s argument for why its client should not be charged, addressed to the officials with authority to decide that question.

How it reached the Department

The submission travelled to the Department as an email attachment. Kirkland & Ellis attorney Ami Sheth wrote to John Roth, an official in the Office of the Deputy Attorney General, on Friday, June 20, 2008, at 12:26 p.m.: “Dear Mr. Roth, As promised in yesterday’s letter to you, we have attached the following documents to this email… We respectfully request and would greatly appreciate the opportunity to speak with you in person about this matter. Kind Regards, Kenneth W. Starr and Jay P. Lefkowitz, Kirkland & Ellis LLP.”2 Roth forwarded it that afternoon, at 1:56 p.m., to two prosecutors in the U.S. Attorney’s Office for the Southern District of Florida, writing: “This was just dropped on me. Given the volume of material, I think it will be best to wait until Monday to call Lefkowitz. Let me know if that upsets your plans too much.”2 One recipient forwarded it again the same afternoon, at 2:44 p.m., to U.S. Attorney Alex Acosta with the note “fyi”; Acosta forwarded his own copy onward that evening, at 4:58 p.m., with the two-word instruction “Pls print.”3 A further copy shows the Principal Submission still being forwarded within the U.S. Attorney’s Office on June 26, alongside a second attachment whose name is fully redacted, six days after it arrived and three days after the Department’s decision.10

Three days after Sheth’s email, on June 23, 2008, “the Office of the Deputy Attorney General informed defense counsel that the Deputy Attorney General would not intervene in the matter,” according to OPR’s later account, which describes the escalation as one “[t]hrough repeated communications with the USAO and senior Department officials” in which defence counsel “sought and obtained review by the Department’s Criminal Division and then the Office of the Deputy Attorney General, primarily on the issue of federal jurisdiction over what the defense insisted was ‘a quintessentially state matter.’”4 Nothing in the documents this page draws on shows what reasoning, if any, accompanied that decision; OPR’s account states only its outcome. “Only then did Epstein agree to fulfill his obligation under the NPA,” and he pleaded guilty in state court on June 30, 2008.4 See the 2008 Non-Prosecution Agreement for the agreement this submission sought to unwind, and Alex Acosta for his own role in resolving the investigation.

Earlier correspondence in the same campaign

The June 2008 submission was the last of a series of written appeals stretching back to late 2007, after the Non-Prosecution Agreement was signed but before Epstein entered his state guilty plea.

On November 8, 2007, Jay Lefkowitz wrote to First Assistant U.S. Attorney Jeffrey Sloman in response to a Sloman letter of November 5. Lefkowitz wrote: “I want to make clear at the outset that Mr. Epstein is complying fully with the Non Prosecution Agreement (the “Agreement”) and that he has every intention of continuing to honor its terms in good faith. Any disagreement the parties have regarding the terms of the Agreement should be resolved through open dialogue and should not be construed as a repudiation of the Agreement.”5 The letter then disputed several of the office’s positions in turn: whether Epstein’s agents could contact potential witnesses before an attorney representative for the victims was named (“we will cease all contact with these individuals until the date of Mr. Epstein’s plea,” while asking the office to state its legal basis for objecting); the timing of the state plea and sentencing; a public comment made on Epstein’s behalf; and the criteria the office had proposed for selecting that attorney representative under 18 U.S.C. § 2255.5

On December 11, 2007, Kirkland & Ellis faxed U.S. Attorney Acosta a bundle of three further letters, describing them as addressing “two separate letters that address our broad areas of deep concern… First, the cluster of fundamental policy issues surrounding the use and implementation of [§]2255… and second, our profound concerns as to the background and conduct of the investigation.”6 The first, signed by Kenneth Starr, protested that the government had recently given a victim’s attorney oral notice of a notification letter while the defence “had thought that the notification process had been held in abeyance until completion of our ongoing discussions with respect to that process,” calling the notification “profoundly unfair” and stating it had “prompted our appeal to the Assistant Attorney General in the first instance.”6 The second and third, both signed by Lefkowitz, ran to some thirty pages combined. The first of the two argued that the state and federal investigators’ “summaries of the evidence” were “materially inaccurate,” disputing specific statements and omissions attributed to the lead Palm Beach police detective in his police report and probable cause affidavit; this page does not repeat that letter’s account of any witness’s testimony.11 It closed asking the U.S. Attorney to “review the evidence supporting the prosecution of Mr. Epstein.”12 The third objected to aspects of the Agreement’s Section 2255 civil-remedy provisions, including the trust arrangement through which identified victims could seek damages.13

Read together with the June 2008 submission, this correspondence shows a single argument, that the matter was, in the defence’s words, “a quintessentially state matter” not properly within federal jurisdiction, pressed at three successive levels of the Department over roughly eight months: the Southern District’s own U.S. Attorney’s Office, then the Criminal Division, then the Office of the Deputy Attorney General.4561 The record here shows the government’s substantive answer only once: the June 23, 2008 decision not to intervene, as reported by OPR. It does not show a substantive government response to the November or December 2007 letters beyond the state plea’s own eventual terms, which the accepted page on the Non-Prosecution Agreement describes.

What was checked and left out

A fifth document initially identified for this page, a one-page October 2007 email exchange between Lefkowitz and an unnamed Department correspondent, is not used here. Rendered at the image, its “To” line and its reply’s “From” line are both redacted, and the recipient is not Acosta, who appears only in a “Cc” line on both messages; it does not fit this page’s subject, a defence-to-ODAG submission, and its actual subject, scheduling a call about a letter to a judge and confirming an addendum’s signatures were being obtained, is not covered here or, as far as searched, on any accepted page. It is reported as a lead rather than used.

Full-text search of the release for “Principal Submission” returns four results, and a further search on the exact list of attachment file names returns one more; none of the additional copies changes anything reported here, and none is separately cited. A search for “Office of the Deputy Attorney General” returns 426 results, which is letterhead and not a workable search term on its own; the submission itself and its transmission were instead confirmed through the distinctive phrase “heartland of historic,” which returns seven results including EFTA00013811, and through the routing email’s own text. This page does not repeat any witness’s account of events at Epstein’s home, and does not identify anyone whose name is redacted in the documents cited.

  • Cases: 2008 Non-Prosecution Agreement; CVRA litigation.
  • People: Alex Acosta; Marie Villafaña.
  • Also named in the record here, and covered on this wiki: Jay P. Lefkowitz (Kirkland & Ellis LLP).
  • Also named in the record here, without pages on this wiki: Kenneth W. Starr and Ami Sheth (Kirkland & Ellis LLP); Jeffrey Sloman (First Assistant U.S. Attorney); John Roth (Office of the Deputy Attorney General); Stephanie Thacker, named in the June 20, 2008 email’s list of attachments as “Response to CEOS’s Letter by Stephanie Thacker,” a phrase this page does not resolve, since the document itself is not among those read for this page and it is not clear from the covering email alone whether Thacker is named as the CEOS letter’s author or the response’s.

Footnotes

  1. “Submission to the Office of the Deputy Attorney General, In the Matter of Jeffrey E. Epstein,” Kirkland & Ellis LLP, undated and unsigned; pp. 1-3 (opening, the CEOS/Santos/Cuellar framing and the state-matter argument), p. 5 (statutory elements introduced), pp. 10-12 (§§ 1591 and 2423(b) arguments), pp. 14-17 (witness-testimony summary, names redacted throughout on the page image). https://epstein-data.com/EFTA00013811 pp.1-17. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10

  2. Email, Ami Sheth (Kirkland & Ellis LLP) to John Roth (ODAG), June 20, 2008, 12:26 p.m., forwarded by Roth the same day, 1:56 p.m., to two U.S. Attorney’s Office (S.D. Fla.) recipients whose names are redacted; further forwarded “fyi” the same afternoon. Read from the page image. https://epstein-data.com/EFTA00013783 p.1. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  3. The same email chain, forwarded further; the top message is from “Acosta, Alex (USAFLS),” dated June 20, 2008, 4:58 p.m. (stamped 20:58:58 UTC), reading only “Pls print,” to a recipient whose name is redacted. Read from the page image. https://epstein-data.com/EFTA00013602 p.1. ↩ ↩2

  4. Office of Professional Responsibility, Executive Summary, narrative p. ii (p. 4 of 14 as filed), on the escalation to the Criminal Division and the Office of the Deputy Attorney General and the June 23, 2008 decision. https://epstein-data.com/DOJ-OGR-00002533 p.4. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  5. Letter, Jay P. Lefkowitz (Kirkland & Ellis LLP) to Jeffrey Sloman, November 8, 2007. https://epstein-data.com/EFTA00013698 pp.1-3. ↩ ↩2 ↩3 ↩4

  6. Letter, Kenneth W. Starr (Kirkland & Ellis LLP) to Alex Acosta, December 11, 2007, transmitted by fax the same day with two further letters; read from the page image, which is faint and partly illegible in the machine text. Cited from a duplicate copy of the same fax, checked at the image. https://epstein-data.com/EFTA00214291 pp.1-2. ↩ ↩2 ↩3 ↩4

  7. Same submission, p. 3: the Petite Policy and the Benczkowski letter to the House Judiciary Committee. https://epstein-data.com/EFTA00013811 p.3. ↩

  8. Same submission, pp. 13-14: the comparisons to clergy-abuse cases and State v. Kutun. https://epstein-data.com/EFTA00013811 pp.13-14. ↩

  9. Same submission, p. 17, closing paragraph. https://epstein-data.com/EFTA00013811 p.17. ↩

  10. A further forward within the U.S. Attorney’s Office (S.D. Fla.), June 26, 2008, listing two attachments, “Principal_Submission.pdf” and a second file whose name is fully redacted; sender and recipient names are redacted and no body text is legible beyond the header. https://epstein-data.com/EFTA00013800 p.1. ↩

  11. Letter, Jay P. Lefkowitz (Kirkland & Ellis LLP) to Alex Acosta, December 11, 2007, “Federal Investigators Relied Upon Tainted Evidence”; opening passage only. https://epstein-data.com/EFTA00176111 p.4. ↩

  12. Same letter, conclusion. https://epstein-data.com/EFTA00176111 p.23. ↩

  13. Letter, Jay P. Lefkowitz (Kirkland & Ellis LLP) to Alex Acosta, December 11, 2007, on 18 U.S.C. § 2255 provisions of the Agreement. https://epstein-data.com/EFTA00176111 pp.24-26. ↩

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