Alexander Acosta on Wednesday defended the 2007 plea deal he approved as the top federal prosecutor in Miami with Palm Beach billionaire Jeffrey Epstein in a child-sex case.
At his Senate confirmation hearing to be President Donald Trump’s labor secretary, Acosta pushed back at questions from 2016 Democratic vice presidential nominee Tim Kaine of Virginia about the plea deal that enabled Epstein to serve just one year in county jail.
“Why cut a non-prosecution deal despite your staff saying you shouldn’t?” Kaine asked.
“That is not accurate,” Acosta responded, disputing reports that in cutting the plea deal with Epstein, he rejected the advice of his senior lawyers when he served as U.S. attorney for Southern Florida.
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“It was a broadly held decision,” Acosta said.
The exchange was one of the more feisty moments in an otherwise relatively smooth hearing that Democrats and Republicans alike say will lead to easy confirmation for Trump’s second choice to lead the Labor Department.
Republican Sen. Marco Rubio of Miami, a fellow Cuban-American, introduced Acosta to the Senate Labor Committee.
“He is a brilliant legal mind, someone with deep knowledge of labor issues, and a proven leader,” Rubio said.
Sen. Ted Cruz of Texas, like Rubio a 2016 Republican presidential candidate, said he and Acosta had bonded over the years as the sons of Cuban-American refugees.
“Alex is a surprisingly good poker player and not nearly as good of a squash player,” Cruz said to laughter.
The Senate in bipartisan votes previously confirmed Acosta for three positions: the prosecutor’s post in Miami, a senior Justice Department job and what became an eight-month stint on the National Labor Relations Board. And labor unions have already told their allies on the Hill that Acosta is a better choice than Trump’s first pick California fast food executive Andy Puzder.
Acosta, now dean of Florida International University’s law school, said he took an unusually strong position in controversial Epstein case by interceding as a federal prosecutor after a grand jury in Palm Beach County had recommended weak charges.
“The grand jury recommended a single count of solicitation not involving minors,” Acosta said. “That would have resulted in zero jail time, zero registration as a sexual offender and zero restitution for the victims in this case.”
Instead, Acosta said, he elevated the case to the level of federal prosecution.
“It was highly unusual where a U.S. attorney becomes involved in a matter that has already gone to the grand jury at the state level,” Acosta said. “We decided that Mr. Epstein should plead guilty to two years (in jail), register as a sexual offender, and concede liability so the victims should get restitution in this matter.”
Acosta, now 48, suggested that some of the allegations in the 52-page indictment of Epstein would have been difficult to prove in a trial.
“It is pretty typical in a prosecution for a draft indictment to be written,” he said. “That doesn’t necessarily mean that the draft indictment is filed because it doesn’t necessarily mean the draft considers the underlying strength of the case.”
Acosta also defended his decision not to require the specifics of the plea deal or underlying charges to be made public. They become public in an ongoing lawsuit filed in 2015.
Acosta, however, expressed some misgivings about keeping the deal private.
“Something that I think has changed over time is trust of government,” Acosta said. “There was a time when keeping something confidential was less of an issue, but the public expectation today is that things be very public.”
As a result of the decline in trust in government, he added, “often a very positive outcome can become a negative outcome not because of a change in the underlying substance, but because of something not being public, it is looked at with suspicion.”
On other issues at the confirmation hearing, Acosta engaged in a long and contentious exchange with Sen. Elizabeth Warren, a Massachusetts Democrat, over his commitment to protect workers from the health risks of inhaling dust containing crystalline silica.
The Labor Department’s Occupational Safety and Health Administration last year proposed two regulations that would restrict the use of crystalline silica and require contractors to increase protections for their workers.
When inhaled, silica dust can cause cancer and respiratory illness. It is a chemical compound often released from the drilling and cutting of brick, stone and concrete on construction sites or during home remodeling projects.
“Either you’re going to stand up for 150 million American workers, including people being poisoned by silica, or you’re not,” Warren said.
Acosta said that, if confirmed to head the Labor Department, he would first have to review all regulations under a recent executive order from Trump that directed the heads of major federal agencies to eliminate or modify unnecessarily costly or burdensome rules.
“The point I’m trying to make is the president has directed each Cabinet officer to review all rules and to make determinations if any rules should be revised,” Acosta said. “So based on that executive action, I cannot make a commitment.”
That hedge prompted a sharp retort from Warren.
“You’re telling me you can’t say we ought to not take out rules that (if eliminated) will cause people to die,” Warren said.
Despite grilling Acosta, Warren said he was a marked improvement over Puzder, who withdrew from consideration in the face of multiple controversies.
“I’ll be honest – I’m glad it’s not his first choice Andrew Puzder sitting here today,” Warren said.
In another contentious exchange, Sen. Patty Murray of Washington state cited a 2008 probe by the Justice Department Inspector General of allegations that the DOJ civil rights division considered job applicants’ political views while Acosta held a top post there.
“Staff under your supervision broke federal law by systematically discriminating against individuals based on their political beliefs,” Murray, the committee’s top Democrat, said. “Your staff referred to conservatives as ‘real Americans’ and called liberals commies and pinkos.”
Acosta said such characterizations had been made mainly by one individual, identified in the report as Bradley Schlozman, but he apologized.
“That conduct should not have happened,” Acosta said. “It happened on my watch. That language should have been used. And I deeply regret it.”
As labor secretary, Acosta said, he would strictly prohibit such behavior.
“Political views in the hiring of career attorneys and staff should not be used,” Acosta told the panel. “If I am asked to do that, I would not allow it.”
Several Democratic senators asked Acosta whether he would be able to withstand political pressure from Trump or his top White House aides.
“I’ve been in public service for the better part of my career,” Acosta said. “I’ve seen pressure. I don’t for a second believe that senior officials would or should bow to inappropriate pressure. We work for the president. He is our boss. So all cabinet officials … will ultimately follow his direction unless we feel that we can’t. And if we can’t, then we resign.”
Democrats and Republicans alike also asked Acosta whether he would push back against Trump’s proposed 21 percent cut in the current $13 billion budget of the Labor Department.
Acosta sidestepped the question.
“Congress will have the final say on the ultimate budget, but dollars are going to be scarce,” he said.
Pressed by Sen. Susan Collins, a Maine Republican, Acosta said he would be unlikely to impose across-the-board cuts in the department.
Instead, Acosta said, he would seek data to determine which programs had produced good outcomes and which ones had been less successful.
“I want to go through these programs and compile the data because for a lot of these programs, I believe the rate of return on taxpayer dollars is quite significant and would pay for itself very readily in money saved and taxes paid by the fact that individuals have jobs,” Acosta said. “So I readily embrace that as part of the job. If confirmed, I certainly am going to speak up and advocate.”
Acosta, who would be the first Hispanic member of Trump’s Cabinet, was also noncommittal about federal rules on overtime pay and other key issues facing workers.
James Rosen: 202-383-6157; @jamesmartinrose