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Acosta’s Sweetheart Deal Likely to Foreclose Epstein’s SDNY Prosecution

Yahoo News - Sat, 07/13/2019 - 03:30

Acosta’s Sweetheart Deal Likely to Foreclose Epstein’s SDNY ProsecutionAlex 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.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.I suspect it is too thin. There is a great deal in the non-pros that cuts against the suggestion that it was limited to the SD-Florida. Moreover, unlike Professor Jonathan Turley (among others), I believe the Supreme Court’s recent double-jeopardy ruling -- in the Gamble case (addressed in this column), which involved the “dual sovereignty” doctrine -- hurts, rather than helps, the SDNY’s position.The Non-Pros Was Expressly Intended to Cover Epstein ‘Globally’ for Crimes ‘Against the United States’ With astonishing chutzpah on Tuesday, Acosta tweeted that he is “pleased that NY prosecutors are moving forward with a case based on new evidence.” In point of fact, the non-pros he authorized was patently designed to foreclose the possibility of any federal prosecution of Epstein.Notice that he says he’s glad the SDNY has found “new evidence.” You know why he has to say new evidence? Because he is not in a position to say the SDNY has found a new offense. If the SDNY had a new offense, prosecutors would have charged it and avoided the double-jeopardy bar. Instead, they have apparently collected new evidence of the same old offense on which Acosta already gave away the store.For the Justice Department to overcome a defendant’s double-jeopardy protection, it is not enough to have new evidence. There has to be proof of a discrete criminal transaction that amounts to a new offense. The new offense may violate the same statute, but it has to be a course of conduct different from the one that has previously been prosecuted. New evidence that merely bolsters proof of an already prosecuted crime is insufficient.The new SDNY indictment charges Epstein with two counts of sex trafficking, specifically: agreeing with others to entice girls under the age of 18 to engage in commercial sex acts, and actually enticing them to do so -- what the law refers to, respectively, as a conspiracy offense and a substantive offense of the relevant statute, Section 1591 of the federal penal code. The offenses are said to have taken place between 2002 and 2005, primarily in Manhattan and in Palm Beach (or, in federal terms, in the SDNY and the SD-Florida).Now, let’s look at the non-pros Acosta gave Epstein in 2007.Acosta noted that, coterminous with a Florida state investigation of Epstein that had resulted in an indictment for soliciting prostitution,> the United States Attorney’s Office and the Federal Bureau of Investigation have conducted their own investigation into Epstein’s background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around 2007, including . . .> > knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act . . . in violation of . . . Sections 1591(a)(1) and 2.(Emphasis added.)The point was to enable Epstein to settle all potential federal criminal liability from his sex-trafficking activities prior to 2007 by pleading guilty to a state prostitution charge. As Politico’s Josh Gerstein observes, the non-pros explicitly asserts that “Epstein seeks to resolve globally his state and federal liability” (my italics). Gerstein is right that the word “globally” is critical. It flies in the face of the aforementioned term that ostensibly limits the agreement to “this district” (the SD-Florida).Yet that is far from the end of the ammunition the non-pros gives Epstein’s lawyers to bolster their claim that Epstein would not have pled guilty to the state charges unless the Justice Department (with Acosta as its authorized attorney) was committing to resolve all potential federal sex-trafficking charges in any federal jurisdiction.Acosta’s agreement did not restrict itself to Epstein’s activities in Florida. It acknowledged that the SD-Florida and the FBI -- our premier federal law-enforcement agency, which has nationwide scope and routinely conducts multi-district investigations -- had been investigating offenses Epstein committed against the United States.Moreover, sex trafficking and related offenses are cognizable federally only if they affect interstate or foreign commerce. That is, Epstein’s conduct necessarily had to have an impact on (and thereby be prosecutable in) multiple states and multiple federal districts in order to be prosecutable by the Justice Department. As if that were not obvious enough, the agreement makes it explicit. In addition to spelling out that the Section 1591 sex-trafficking conduct affected interstate commerce, Acosta says that the federal investigation conducted by his office and the FBI included all potential “offenses that may have been committed by Epstein against the United States” and that involved:• Conspiring with others to use, and actually using, facilities in interstate and foreign commerce to induce minor females to engage in prostitution; and• Conspiring with others to travel, and actually traveling, in interstate and foreign commerce for the purpose of engaging in illicit sexual conduct.The non-pros further elaborates that Epstein’s conduct occurred with persons “known and unknown” to investigators. Implicitly, this is a statement that, while the government was aware of the kind of offenses that Epstein had committed, its evidence was not so comprehensive that it was aware of every single person involved. That is, with respect to Epstein, the agreement was meant to encompass all instances of the offenses described, even if the investigation had not yet identified all potential conspirators and victims.Further, reports indicate that Epstein lawyer Ken Starr went over Acosta’s head to appeal to the Justice Department, which rejected his argument that a federal prosecution of Epstein was not warranted. Only after that did Epstein finalize the non-pros and plead guilty.It was reasonable for Epstein to assume that settling the federal case in SD-Florida would settle it in all the affected federal districts. He will be able to contend that he had every reason to believe that he was dealing with the Justice Department regarding offenses against the United States, not just its prosecutor in the SD-Florida regarding purely local crimes. If that is not so, then no plea agreement involving a federal crime that relies on interstate commerce for federal jurisdiction (i.e., most federal crimes) has double-jeopardy protection: If the feds don’t like the sentence the judge imposes, they may simply file a new indictment charging the same offense in the other state (or states) affected by the conduct.SDNY and SD-Florida Are Parts of the Same Sovereign As we’ve noted, it is true that there is Second Circuit authority for the proposition that a prosecutor’s agreement in one federal district is not necessarily binding on a prosecutor in another federal district. Yet there is not universal agreement on this point. And even in Second Circuit double-jeopardy jurisprudence, a conviction or acquittal in one district will bar a successive prosecution in another district for the same offense. It has never made sense to me that double-jeopardy principles protect a defendant who has been convicted or acquitted by a jury, but not one whose case has been disposed of by a plea or non-pros agreement with a prosecutor that has the same effect.In any event, the Second Circuit authority will have to be reconsidered in light of the various opinions in Supreme Court’s recent Gamble decision. That case involved a federal prosecution following a state conviction for the same crime. As discussed in my aforementioned column, we reluctantly abide multiple prosecutions for the same misconduct, despite our double-jeopardy principles, only because the laws of two different sovereigns -- state and federal -- are implicated. Even though the crime may be the same (e.g., illegal possession of a gun), there are two separate offenses because an offense is the violation of each sovereign’s separate criminal code and jurisdiction.While successive prosecutions by different sovereigns do not violate the letter of the Fifth Amendment, they are in tension with its double-jeopardy clause’s conception of fundamental fairness. Because of that, despite the dual-sovereignty doctrine, many states do not permit successive prosecutions if a person has already been tried by federal authorities or those of another state. That’s how seriously we take double jeopardy.Now, contrast Epstein’s case. It is because of dual sovereignty that Epstein’s top-shelf legal team worked in 2007 to dispose of state and federal liability simultaneously. The avoidance of successive prosecutions is precisely what he bargained for -- he pled guilty and served time on state charges on the condition (to which Acosta, on behalf of the Justice Department, agreed) that there would be no federal prosecution.Consequently, the issue presented by the new SDNY indictment is not dual sovereignty; it is straightforward double jeopardy. SD-Florida and SDNY are different federal venues, but they are part of the same sovereign.That sovereign, the United States, is now attempting to proceed with a second prosecution for the same offense. The reason for this, transparently, is that federal officials are mortified by the result of the first prosecution: The Justice Department is embarrassed because of how Acosta, then its representative, handled the first case; and the White House is embarrassed because the president subsequently chose Acosta for a cabinet post. But dissatisfaction with the prior result is not a justification for dispensing with the Constitution’s safeguards.Gamble was not a unanimous decision. The Supreme Court is divided over the validity of successive prosecutions, even in the dual-sovereignty context. Justices Gorsuch and Ginsburg are convinced they violate double jeopardy. Justice Thomas only reluctantly went along with the majority. That majority, led by Justice Alito, was emphatic that what made the successive prosecution permissible was the fact that the federal government and state governments are different sovereigns -- that and that alone can make the same crime a different “offense” for double-jeopardy purposes.I do not believe this Supreme Court would approve successive prosecutions by different districts of the same sovereign. And that is significant here. In the double-jeopardy context, the constitutional violation is not just to convict or acquit a defendant a second time; it is to subject him to any facets of prosecution for a previously prosecuted offense. Even if Epstein’s SDNY indictment is upheld by the district court and the Second Circuit, he will have an opportunity to seek Supreme Court review before his prosecution proceeds to trial.In evaluating the Acosta–Epstein non-pros, it is critical to set aside how manifestly unjust it is. In that, our outrage is no different from what we feel on the rare occasion when a jury acquits a patently guilty defendant of horrible crimes (e.g., O. J. Simpson). How angry the sheer injustice of the outcome makes us is a separate matter from how broadly the legal judgment protects the defendant -- indeed the latter is the cause of the former.You have to keep reminding yourself that, in our system, people are presumed innocent, and the government bears the burdens of a prosecution aimed at depriving an accused of liberty, including the burden of being limited to a single opportunity to convict. The vast majority of the time, that is something to celebrate. Alas, it is not something we can afford to disturb when, inevitably, it produces some atrocious results -- not without putting our fundamental protections from government abuse at risk.The SDNY should absolutely prosecute the monstrous Epstein if prosecutors can find a new offense. Let’s hope they find one.


Pelosi’s House of Pain

Yahoo News - Sat, 07/13/2019 - 03:30

Pelosi’s House of PainNot so long ago — as recently as the cover of the March 2019 Rolling Stone, in fact — they seemed like the best of friends. I'm referring to Nancy Pelosi and the members of "The Squad": Ilhan Omar, Alexandria Ocasio-Cortez, and (not pictured) Rashida Tlaib and Ayanna Pressley. They shared some good times.It was the dawn of a new era. House Democrats had returned to power after eight years. And these Democrats were remarkably diverse in age, ethnicity, race, and gender. Ideology, too: Ocasio-Cortez and Tlaib belong to the Democratic Socialists of America. "Our nation is at an historic moment," Pelosi said in January. "Two months ago, the American people spoke, and demanded a new dawn."Well, the sun has set. And fast. Whatever Pelosi's plans might have been, they've been lost in a fog of anti-Semitism and left-wing radicalism. If Ilhan Omar isn't causing Pelosi trouble, Ocasio-Cortez is. And vice versa. One day the speaker has to respond to the charge that Jewish money controls American foreign policy. The next she has to downplay flatulent cows. It's enough to make one pity her. Almost.Pelosi's bind began on election night. As Republicans learned from 2011-2015, holding one chamber of Congress isn't worth that much. The president and the upper chamber block legislation. Frustrated by inaction, the majority turns inward. Divisions grow. The more extreme members target leadership. The speaker spends more time negotiating with her own party than with the president and Senate majority leader.Recently it seemed as though the major divide would be over impeachment. Pelosi's terrified by the prospect. The idea isn't popular, especially with voters in battleground districts. And Mueller's report didn't give her much to work with. She would have been in a better position had the special counsel actually said that he thought President Trump obstructed justice. But he copped out, leaving people confused and Pelosi forlorn. She's let Nadler, Schiff, and Cummings fire their subpoena cannons at will. But this war of attrition favors the president. And deepens the frustration of Democrats who wish Trump had been impeached on inauguration day.The crisis at the border revealed another division. Shouldn't have been much of a surprise: Immigration is the defining issue of our time, its tendrils entangling themselves in the politics of democracies around the world.Democrats, and many Republicans, object to the conditions facing detained asylum-seekers. What separates the Democrats is what to do about it. The majority, including representatives from Trump districts, takes the classic approach: throw money at the problem. The Squad has a different idea. It voted against border funds to "make a point." And strike a pose.Ocasio-Cortez's outlandish rhetoric isn't helping. She's described the detention centers as "concentration camps." Already in favor of abolishing Immigration and Customs Enforcement, this week she said she's open to shutting down the entire Department of Homeland Security. Why stop there? I'm guessing she doesn't like the Department of Defense, either. Karl Rove, who in 2002 won a midterm election over DHS, said Ocasio-Cortez's comments were "moronic, stupid, naïve, and dumb." That was an understatement.She's something, Ocasio-Cortez. At 29 years old, she perfectly embodies her generation's uniquely irritating combo of self-righteousness and cluelessness. Passionate and charming at first blush, her appeal quickly wears off. In a March Quinnipiac poll, her favorability was underwater by 13 points.What Ocasio-Cortez understands is that, in the culture of social-media celebrity, the worst possible thing to do is back down. So, when Pelosi stated the obvious to Maureen Dowd — that for all the attention The Squad receives from the media it is, in the end, four votes — Ocasio-Cortez insinuated the speaker is a racist. And they say liberals oppose nuclear war.If Pelosi's racist, then America is in serious trouble. The absurdity of the claim was best expressed by Congressman Lacy-Clay, who is black. "You're getting pushback so you resort to using the race card?" he asked. "Unbelievable." But the very absurdity highlights the position in which the Democratic leadership finds itself. An aging elite must contend with a vocal, far-left cadre of social-justice warriors, even as the majority depends on legislators who don't frighten moderates. The differences between the contestants in this liberal Thunderdome are generational, ideological, methodological, and demographic. How Pelosi escapes is a mystery.Maybe she can't. Maybe The Squad really is the future of the Democratic party. After all, Jeremy Corbyn moved from the fringe to the leadership of the Labour Party in the U.K. And the trend of the Democrats has been leftward for a while. If that's the case, then Pelosi faces a grim future.And maybe the Democrats do, too. Even if you assume that Ocasio-Cortez's Twitter and Instagram following counts for something in the real world, she's not about to help Democrats win Senate races in red states. President Trump and the Republican party want nothing more than to define the choice in 2020 as between socialism and Americanism, socialism and prosperity, socialism and security. And for whatever reason, Alexandria Ocasio-Cortez is eager to help him.This piece was originally published in the Washington Free Beacon.


Storm Area 51: More than 600,000 people sign up to raid secretive military base to ‘see them aliens’

Yahoo News - Sat, 07/13/2019 - 03:01

 More than 600,000 people sign up to raid secretive military base to ‘see them aliens’Over 600,000 people have signed up to an event to “storm Area 51” – the top secret US military base in the Nevada desert – in a quest to “see them aliens”.The event, titled “Storm Area 51, they can’t stop all of us”, invites attendees to congregate en mass before entering the base together.The event, organised on Facebook, appears to be a tongue in cheek invitation, rather than the first signs of a radical civil disobedience movement.This is made clear by the reference to the highly-classified military base as the “Area 51 Alien Centre tourist attraction”.“If we naruto run, we can move faster than their bullets. Lets see them aliens,” the invitation says.To “naruto run” is to run at high speed in the style of Naruto Ozumaki – title character in the Japanese anime series Naruto – who runs with his head down and arms behind his back. The event, if it can be called such, is scheduled for 20 September.The mysterious and heavily guarded Area 51 has been at the centre of numerous conspiracy theories for decades, with supposed connections to humanoid alien life forms and their supposed space ships.It featured in the 1996 alien invasion film Independence Day as an alien testing laboratory, but the base’s real primary function remains unknown.It was only formally recognised as a military base in 2013 following a 2005 Freedom of Information Act request.The perimeter of the base is constantly patrolled by armed security guards and CCTV and motion-sensor cameras are also in use.Signs around the base advise that “deadly force” is authorised against trespassers.Military aviation website TheAviationist.com spoke to a local company which offers tours up to the edge of the Area 51 facility, and who warned any attempt to reach the base would be “very stupid”.Donna Tryon reportedly said: “Area 51 is not a joke. No matter what is going on there, people need to remember, this is a military facility. You wouldn’t get far.”The website detailed an incident in which a tour driver from the company had inadvertently crossed into the restricted area which resulted in the arrest of the driver and the vehicle’s occupants. On previous occasions the tours have been “buzzed” by military aircraft, and people have had red laser sight dots appear on their foreheads from the desert, the website said.Though the invitation to storm Area 51 appears to be a joke, last month The Pentagon provided a very real classified briefing to members of Congress about reported encounters by US navy pilots with unidentified aircraft, some of which were said to have no visible engines and could reach hypersonic speeds.Earlier this year, a number of pilots reported seeing the objects on an almost daily basis from the summer of 2014 to March 2015 while flying navy jets off the East Coast. Some of the encounters were captured on video and lead the navy to announce it had updated the way pilots were to formally reports the incidents.“Navy officials did indeed meet with interested congressional members and staffers on Wednesday to provide a classified brief on efforts to understand and identify these threats to the safety and security of our aviators,” the navy said in a statement last month.“These things would be out there all day,” Lt Ryan Graves, an F/A-18 Super Hornet pilot with ten years experience with the navy, told the New York Times in May. “Keeping an aircraft in the air requires a significant amount of energy. With the speeds we observed, 12 hours in the air is 11 hours longer than we’d expect.”


How Iowa can teach the nation to cure one form of political cancer: gerrymandering

Yahoo News - Sat, 07/13/2019 - 03:00

 gerrymanderingThe Supreme Court may have declined to address an obvious source of dysfunction in our democracy, but Iowa's redistricting process can help.


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