Acosta-Epstein Deal Sparks Calls for Independent DOJ Misconduct Investigations

(Photo: Department of Labor; Illustration by POGO)

Congressional outrage sparked by a recent Miami Herald story about the lenient plea deal that current Labor Secretary Alexander Acosta struck with a powerful defendant when Acosta was a federal prosecutor has provided new urgency for legislation that would lead to more independent and transparent investigations of alleged misconduct by Justice Department attorneys. The bill’s provisions reflect recommendations the Project On Government Oversight (POGO) made in 2014.

“It is just a shocking plea agreement,” Rep. Lois Frankel (D-FL) said during a December press conference, where she and 14 other members of Congress announced they had requested an investigation of Acosta’s actions. “We are hoping for transparency.” They sent a letter to the Department’s inspector general.  

But currently, the Department’s secretive Office of Professional Responsibility (OPR), which does not have independence protections in statute, has the sole power to investigate Department attorneys who allegedly commit misconduct when exercising their official power. In 2014, POGO released a report, based on information gleaned through Freedom of Information Act requests, that found 650 instances of serious misconduct confirmed by OPR from fiscal year 2002 through fiscal year 2013. The misconduct included federal prosecutors misinforming judges and withholding information that could be helpful to defendants. The names of attorneys who committed the misconduct and what steps taken to hold them accountable are largely kept by OPR and the Department under a veil of secrecy.

Last year, the bipartisan Inspector General Access Act, which would give the Justice Department’s independent inspector general authority to investigate professional misconduct by the Department’s attorneys, unanimously passed the House but did not make substantial headway in the Senate.

The news about Acosta’s 2007 deal with Florida billionaire Jeffrey Epstein, who faced extensive charges for sexually abusing dozens of minors, and questions about double standards of justice when the accused are powerful, has led to new calls from Congress and the top newspaper in southern Florida for the legislation to become law this year. Acosta approved a highly unusual non-prosecution agreement granting Epstein, four others, and “any potential co-conspirators” federal immunity and kept the deal secret from Epstein’s victims.

“The public is owed an explanation why a serial sexual predator of young women was let off with extreme light punishment and is still roaming free,” Rep. Frankel told The Daily Beast.

There is no principled reason to have two standards of oversight at DOJ—one for federal agents, who are subject to statutorily independent and transparent oversight by the [Office of Inspector General], and one for federal prosecutors.

Michael Horowitz, Inspector General of the Department of Justice

Congressional sponsors of the legislation that would give the Department of Justice’s (DOJ) inspector general authority to investigate have cited POGO’s 2014 findings as a reason to support the bill. Most recently, the lead sponsor of the legislation in the House, Rep. Cedric Richmond (D-LA), referred to POGO’s findings in a November statement.

On January 1, the Miami Herald’s editorial board wrote, “When Congress returns to work in January, we’re asking the Senate to quickly pass the Inspector General Access Act of 2017, House Bill 3154. This would give DOJ Inspector General Michael Horowitz a clear path to investigate Acosta now — if he wishes to do so. He should. In the future, it would also bring other similar backroom deals under the IG’s oversight.” The Herald too cited POGO’s report.

The Justice Department’s inspector general thoroughly made the case for the legislation in a previously unreported letter sent to Congress at the end of November. “There is no principled reason to have two standards of oversight at DOJ—one for federal agents, who are subject to statutorily independent and transparent oversight by the OIG [Office of Inspector General], and one for federal prosecutors, who are not for allegations of professional misconduct. This is particularly true given the extraordinary power that Department lawyers have to charge individuals with crimes, to seek incarceration, and to pursue the seizure of assets and property,” Inspector General Horowitz wrote. 

Congressional sponsors of the legislation that would give the DOJ's inspector general authority to investigate have cited POGO’s findings.

“In addition to independence, the OIG considers transparency a crucial component of its oversight mission. With limited exceptions, the OIG ensures that the public is aware of the results of our work,” Horowitz wrote. Taking issue with the Department’s argument that OPR’s annual reports contain “a substantial amount of information,” Horowitz countered that “this information is not reported in a timely or comprehensive manner. Congress and the public only find out about some, but not necessarily all, of OPR’s work when it issues an annual report.”

“Transparency ensures greater accountability, and sends an important deterrent message to other Department employees. The credibility of the Department’s disciplinary process is inevitably reduced when the responsible component operates under the direction of the Department’s senior leadership and is not subject to public scrutiny because of limited transparency,” wrote Horowitz.

The Inspector General Access Act was reintroduced last week in the House with bipartisan support. In the Senate, the bill was sponsored last year by Republican Senators Mike Lee (UT), Charles Grassley (IA), and Lisa Murkowski (AK). It has yet to be reintroduced in the Senate.