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Case 22-1426, Document 77, 06/29/2023, 3536038, Page163 of 258
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unambiguous standard or engaged in professional misconduct in developing, negotiating, or
entering into the NPA, including its addendum.

A. U.S. Attorneys Have Broad Discretion to Resolve Investigations or Cases as
They Deem Appropriate, and Acosta’s Decision to Decline to Prosecute
Epstein Federally Does Not Constitute Professional Misconduct

The U.S. Attorneys exercise broad discretion in enforcing the nation’s criminal laws.203
As a general matter, federal prosecutors “are designated by statute as the President’s delegates to
help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully
executed.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting U.S. Const. art. II,
§ 3). Unless based on an impermissible standard such as race, religion, or other arbitrary
classification, a prosecutor’s charging decisions—including declinations—are not dictated by law
or statute and are not subject to judicial review. See United States v. LaBonte, 520 U.S. 751, 762
(1997) (“Such discretion is an integral feature of the criminal justice system, and is appropriate,
so long as it is not based upon improper factors.”).

Department policy guidance in effect at the time the USAO was handling the Epstein case
helped ensure “the reasoned exercise of prosecutorial authority,” but did not require “a particular
prosecutorial decision in any given case.” USAM §§ 9-27.001, 9-27.120 (comment). Rather than
mandating specific actions, the USAM identified considerations that should factor into a
prosecutor’s charging decisions, including that the defendant was “subject to effective prosecution
in another jurisdiction.” USAM § 9-27.220. Importantly, U.S. Attorneys had “plenary authority
with regard to federal criminal matters” and could modify or depart from the principles set forth
in the USAM as deemed necessary in the interest of fair and effective law enforcement within their
individual judicial districts. USAM §§ 9-2.001, 9-27.140. As stated in the USAM, “[t]he United
States Attorney is invested by statute and delegation from the Attorney General with the broadest
discretion in the exercise of such [prosecutive] authority,” which includes the authority to decline
prosecution. USAM § 9-2.001.

In addition, the USAM contemplated that federal prosecutors would sometimes decline
federal prosecution in deference to a state prosecution of the same conduct and provided guidance
in the form of factors to be considered in making the decision, including the strength of the other
jurisdiction’s interest in prosecution, the other jurisdiction’s ability and willingness to prosecute
effectively, and the probable sentence or other consequences if the person is convicted in the other
jurisdiction. USAM § 9-27.240.204 A comment to this provision stated that the factors are
“illustrative only, and the attorney for the government should also consider any others that appear
relevant to hi[m]/her in a particular case.”

203 See, e.g., Wayte, 470 U.S. at 607; United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982);
Bordenkircher, 434 U.S. at 364; Imbler, 424 U.S. 409.

204 The discretionary authority under USAM § 9-27.240 to defer prosecution in favor of another jurisdiction is
distinct from the Petite policy, which establishes guidelines for the exercise of discretion in determining whether to
bring a federal prosecution based on conduct substantially the same as that involved in a prior state or federal
proceeding. See USAM § 9-2.031.

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