Alexander Acosta is arguably President Trump’s most successful cabinet member. For starters, job numbers and unemployment rates are breaking records under his supervision as Labor Secretary.
And particularly noteworthy for this administration, Acosta has been scandal free. There have been no Twitter fights (like with Jeff Sessions), no misuse of government funds (like with six other cabinet members), or other similar issues (like with Louise Linton going off on Instagram).
Instead, Acosta has done what he has always done — kept his head down, worked hard, and gotten good results.
Because of his successes, there had been some whispers that Acosta was being considered, albeit as a long-shot, for Attorney General.
Acosta, who has dedicated his life to public service (from the civil rights division to U.S. Attorney to dean of Florida International University School of Law to his current position in the cabinet), would have been an incredible choice.
Then last week, the Miami Herald retold the story of Jeffrey Epstein’s plea deal from over 10 years ago, when Secretary Acosta was U.S. Attorney Acosta. Although Epstein was required to plead guilty, register as a sex offender, pay restitution and go to state prison, there are many — including the New York Times, Miami Herald, and others — who are calling for Congress to investigate Acosta and force him out, equating Acosta’s approval of the deal to Epstein’s actions.
Although it is fair to have an honest disagreement about the Epstein plea agreement, the attacks on Acosta are not justified. As for the merits of the agreement, it is important to remember that the federal government only prosecutes federal crimes.
At the time this case was being investigated, there were serious questions about whether Epstein’s crimes had the required federal nexus. These were traditional state court crimes with local victims, which the federal government decided should be prosecuted by the state system.
In addition, there were legitimate concerns about how a trial would have turned out. These trials are difficult as the Michael Jackson (acquitted) and Bill Cosby (hung jury before eventually obtaining conviction, which is now subject to appeal) cases have shown. Here, prosecutors have said that many of the victims either refused to testify or were going to say things that helped Epstein.
The sad truth is that over 97 percent of cases result in plea agreements. There are so many moving parts in these deals that it is hard to say how or why any particular deal is made — the strength of the government’s case, witness issues, jurisdictional questions and prosecutorial goals are just some of these considerations. That’s why when prosecutors recommend no jail time for Michael Flynn or allow Michael Cohen to ask for no jail time, there are always critics including the president.
To argue that Acosta was persuaded to sign off on passing the case to state authorities because of Epstein’s wealth or Epstein’s lawyers is to ignore Acosta’s record as a tough prosecutor who put away Jack Abramoff, Jose Padilla, Broward Sheriff Ken Jeanne, executives of Hamilton Bank, and many more.
Acosta was the first U.S. Attorney to go after the Swiss banks, and he obtained a fine for $780 million as well as the names of individuals who were using secret Swiss Banks to avoid U.S. taxes. He was not a softie on the rich.
Some of these clients have been my own — and whether my clients’ cases turned out well or not for them, when we dealt with each other, I always found Acosta to be open-minded, engaging, fair, and tough.
It’s a shame that this issue has tainted Acosta. Not only has he done a really good, scandal-free, job as Labor Secretary, he would have been a tough, but fair, Attorney General. He is the kind of person we should be crossing our fingers to get in this administration.
It’s telling that the best that the critics can come up with is that he approved an old agreement to allow the state system deal with a state crime, resolving a difficult case, and putting a bad guy in prison.
David Oscar Markus is a Miami criminal defense lawyer at Markus/Moss who practiced against Acosta when he was U.S. Attorney of the Southern District. @domarkus