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Case 22-1426, Document 78, 06/29/2023, 3536039, Page56 of 217
SA-310
Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 310 of 348

OPR evaluated the conduct of each subject based on his or her individual role in various
decisions and events and assessed that conduct pursuant to OPR’s analytical framework. OPR
found that Acosta made the pivotal decision to resolve the federal investigation of Epstein through
a state-based plea and either developed or approved the terms of the initial offer to the defense that
set the beginning point for the subsequent negotiations that led to the NPA. Although Acosta did
not sign the NPA, he participated in its drafting and approved it, with knowledge of its terms.
Therefore, OPR considers Acosta to be responsible for the NPA and for the actions of the other
subjects who implemented his decisions.

Based on its extensive investigation, OPR concludes that the subjects did not commit
professional misconduct with respect to the development, negotiation, and approval of the NPA.
Under OPR’s framework, professional misconduct requires a finding that a subject attorney
intentionally or recklessly violated a clear and unambiguous standard governing the conduct at
issue. OPR found no clear and unambiguous standard that required Acosta to indict Epstein on
federal charges or that prohibited his decision to defer prosecution to the state. Furthermore, none
of the individual terms of the NPA violated Department or other applicable standards.

As the U.S. Attorney, Acosta had the “plenary authority” under established federal law and
Department policy to resolve the case as he deemed necessary and appropriate, as long as his
decision was not motivated or influenced by improper factors. Acosta’s decision to decline to
initiate a federal prosecution of Epstein was within the scope of his authority, and OPR did not
find evidence that his decision was based on corruption or other impermissible considerations,
such as Epstein’s wealth, status, or associations. Evidence shows that Acosta resisted defense
efforts to have the matter returned to the state for whatever result state authorities deemed
appropriate, and he refused to eliminate the incarceration and sexual offender registration
requirements. OPR did not find evidence establishing that Acosta’s “breakfast meeting” with one
of Epstein’s defense counsel in October 2007 led to the NPA, which had been signed weeks earlier,
or to any other significant decision that benefited Epstein. The contemporaneous records show
that USAO managers’ concerns about legal issues, witness credibility, and the impact of a trial on
the victims led them to prefer a pre-charge resolution and that Acosta’s concerns about the proper
role of the federal government in prosecuting solicitation crimes resulted in his preference for a
state-based resolution. Accordingly, OPR does not find that Acosta engaged in professional
misconduct by resolving the federal investigation of Epstein in the way he did or that the other
subjects committed professional misconduct through their implementation of Acosta’s decisions.

Nevertheless, OPR concludes that Acosta’s decision to resolve the federal investigation
through the NPA constitutes poor judgment. Although this decision was within the scope of
Acosta’s broad discretion and OPR does not find that it resulted from improper factors, the NPA
was a flawed mechanism for satisfying the federal interest that caused the government to open its
investigation of Epstein. In Acosta’s view, the federal government’s role in prosecuting Epstein
was limited by principles of federalism, under which the independent authority of the state should
be recognized, and the federal responsibility in this situation was to serve as a “backstop” to state
authorities by encouraging them to do more. However, Acosta failed to consider the difficulties
inherent in a resolution that relied heavily on action by numerous state officials over whom he had
no authority; he resolved the federal investigation before significant investigative steps were
completed; and he agreed to several unusual and problematic terms in the NPA without the
consideration required under the circumstances. In sum, Acosta’s application of federalism

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