DOJ-OGR-00021297.jpg

Case 22-1426, Document 77, 06/29/2023, 3536038, Page125 of 258
SA-123
Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 123 of 348

provision, recounted the history of NPA negotiations, and described the post-signing efforts by
Epstein’s counsel to challenge portions of the NPA. Acosta’s letter concluded:

Although it happens rarely, I do not mind this Office’s decision
being appealed to Washington, and have previously directed our
prosecutors to delay filings in this case to provide defense counsel
with the option of appealing our decisions. Indeed, although I am
confident in our prosecutors’ evidence and legal analysis, I
nonetheless directed them to consult with the subject matter experts
in [CEOS] to confirm our interpretation of the law before approving
their [charges]. I am thus surprised to read a letter addressed to
Department Headquarters that raises issues that either have not been
raised with this Office previously or that have been raised, and in
fact resolved, in your client’s favor.

I am troubled, likewise, by the apparent lack of finality in this
Agreement. The AUSAs who have been negotiating with defense
counsel have for some time complained to me regarding the tactics
used by the defense team. It appears to them that as soon as
resolution is reached on one issue, defense counsel finds ways to
challenge the resolution collaterally. My response thus far has been
that defense counsel is doing its job to vigorously represent the
client. That said, there must be closure on this matter. Some in our
Office are deeply concerned that defense counsel will continue to
mount collateral challenges to provisions of the Agreement, even
after Mr. Epstein has entered his guilty plea and thus rendered the
agreement difficult, if not impossible, to unwind.

. . . .

I would reiterate that it is not the intention of this Office ever to force
the hand of a defendant to enter into an agreement against his
wishes. Your client has the right to proceed to trial. Although time
is of the essence . . . I am directing our prosecutors not to issue
victim notification letters until this Friday . . . to provide you with
time to review these options with your client. . . . We expect a
written decision by [December 7, 2007] at 5 p.m., indicating
whether the defense team wishes to reaffirm, or to unwind, the
Agreement.

Acosta explained to OPR that he did not view his letter as “inviting” Departmental review,
but he believed the Department had the “right” to address Epstein’s concerns. Moreover, the
USAO’s only option at that time was to declare Epstein in breach of the NPA, which would have
prompted litigation as to whether Epstein was, in fact, in breach. Acosta noted that defense counsel
repeatedly proclaimed Epstein’s intent to abide by the agreement, making any USAO effort to
declare him in breach more difficult. In fact, the day after receiving Acosta’s letter, Starr and
Lefkowitz responded to Acosta (with copies to Sloman and Assitant Attorney General Fisher) that

97

DOJ-OGR-00021297