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Case 22-1426, Document 78, 06/29/2023, 3536039, Page28 of 217
SA-282
Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 282 of 348

As discussed below, OPR concludes that none of the subject attorneys violated a clear and unambiguous duty under the CVRA because the USAO resolved the Epstein investigation without a federal criminal charge. In September 2007, when the NPA was signed, the Department did not interpret CVRA rights to attach unless and until federal charges had been filed, and the federal courts had not established a clear and unambiguous standard applying the CVRA before criminal charges were brought. Pursuant to OPR’s established analytical framework, OPR does not find professional misconduct unless a subject attorney intentionally or recklessly violated a clear and unambiguous standard. Accordingly, OPR finds that the subject attorneys’ conduct did not rise to the level of professional misconduct. OPR nevertheless concludes that the lack of consultation was part of a series of government interactions with victims that ultimately led to public and court condemnation of the government’s treatment of the victims, reflected poorly on the Department as a whole, and is contradictory to the Department’s mission to “minimize the frustration and confusion that victims of a crime endure in its wake.”³⁹⁶

A. At the Time, No Clear and Unambiguous Standard Required the USAO to Notify Victims Regarding Case-Related Events until after the Filing of Criminal Charges

Although the rights enumerated in the CVRA are clear on their face, the threshold issue of whether an individual qualifies as a victim to whom CVRA rights attach was neither clear nor unambiguous at the time the USAO entered into the NPA with Epstein in September 2007. At that time, the Department interpreted the CVRA in a way that differed markedly from the district court’s later interpretation in the CVRA litigation.

The CVRA defines a “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.” On April 1, 2005, soon after the CVRA was enacted, OLC concluded that “the status of a ‘crime victim’ may be reasonably understood to commence upon the filing of a criminal complaint, and that the status ends if there is a subsequent decision not to indict or prosecute the Federal offense that directly caused the victim’s harm.” Beginning with the 2005 OLC guidance, the Department has consistently taken the position that CVRA rights do not apply until the initiation of criminal charges against a defendant, whether by complaint, indictment, or information. OLC applied its definition to all eight CVRA rights in effect in 2005, but noted that the obligation created by the eighth CVRA right—to “treat[] victims with fairness and respect”—is “always expected of Federal officials, and the Victims’ Rights and Restitution Act of 1990 [(VRRA)] indicates that this right applies ‘throughout the criminal justice process.’”³⁹⁷ Consistent with the OLC interpretation, in May 2005, the Department issued the 2005 Guidelines to implement the CVRA.

The 2005 Guidelines assigned CVRA-related obligations to prosecutors only after the initiation of federal charges. Specifically, the 2005 Guidelines stated that during the “prosecution stage,” the “responsible official” should make reasonable efforts to notify identified victims of,

³⁹⁶ 2005 Guidelines, Foreword.
³⁹⁷ Nevertheless, the portion of the VRRA referenced in the OLC 2005 Informal Guidance, 42 U.S.C. § 10606, had been repealed upon passage of the CVRA.

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