Office of Professional Responsibility

The Office of Professional Responsibility is the component of the Department of Justice that investigates allegations of professional misconduct by the department's lawyers in their exercise of authority to investigate, litigate or give legal advice, and by its law enforcement agents where the allegations relate to a lawyer's misconduct. It was established in 1975 "in response to professional misconduct associated with the Watergate scandal." From February 2019 to November 2020 it investigated the U.S. Attorney's Office for the Southern District of Florida's resolution of the federal case against Jeffrey Epstein through the 2007 Epstein non-prosecution agreement, examining former U.S. Attorney Alexander Acosta and four subordinates. Its November 2020 report found that none had committed professional misconduct, concluded that Acosta's decision to use the agreement "constitutes poor judgment," and found no evidence that Epstein was a cooperating witness or "intelligence asset." The report is a public record of the Epstein Library as EFTA02847284 and was refiled as an exhibit in later Epstein litigation.¹²³

Mandate and Standard

The office's stated mission is "to ensure that Department attorneys perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency." Its authority rests on 28 C.F.R. 0.39a and extends to former department lawyers; the department cannot discipline a former lawyer, but a finding that one violated state professional conduct rules can be referred to a state bar. The office finds misconduct only when it concludes, by a preponderance of the evidence, that a lawyer intentionally or recklessly violated "a clear and unambiguous standard" governing the conduct at issue. Where no such standard exists, or the violation was neither intentional nor reckless, it may instead find that the lawyer "exercised poor judgment, made a mistake, or otherwise acted inappropriately under the circumstances." It declines some complaints without investigation: in December 2010 a lawyer for Epstein's victims alleged that Epstein may have exerted improper influence over the federal investigation and that the Florida office had deceived victims about the agreement, and the office declined to open an inquiry in deference to the pending victims' litigation.¹⁴

The Epstein Investigation

After the Miami Herald published Julie K. Brown's series on November 28, 2018, Senator Ben Sasse, chairman of a Senate Judiciary oversight subcommittee, wrote to the office on December 3, 2018 asking it to "open an investigation into the instances identified in this reporting of possible misconduct by Department of Justice attorneys." On February 6, 2019 the department's Office of Legislative Affairs told Sasse that the office had opened an investigation. After Judge Kenneth Marra ruled on February 21, 2019 in Doe v. United States that the government had violated the Crime Victims' Rights Act, the office added the government's treatment of victims to its review.²

The five subjects were Acosta, Jeffrey Sloman, Matthew Menchel, Andrew Lourie and A. Marie Villafaña. Each submitted a written response and was interviewed under oath before a court reporter with counsel present, and each reviewed the draft report. The office reviewed hundreds of thousands of pages from the Florida office, the Federal Bureau of Investigation, the Criminal Division, the Office of the Deputy Attorney General and the Executive Office for United States Attorneys, including more than 850,000 Outlook records of the subjects and six other witnesses, and conducted more than 60 interviews, among them former Deputy Attorney General Mark Filip, former State Attorney Barry Krischer and former Assistant State Attorney Lanna Belohlavek. It received information from or about 13 victims. It stated that it had no jurisdiction over state officials and reached no conclusions about their conduct.²⁵

Acosta's Missing Email

Reviewing the email, the office found that Acosta's inbox held no messages from May 26, 2007 to November 2, 2008, a period covering the negotiation, signing and implementation of the agreement, while his sent mail showed no such gap. The Executive Office for United States Attorneys found "a data association error that incorrectly associated Acosta's data with an unrelated employee who had a similar name," and recovered 11,248 emails from April 3, 2008 onward. The earlier messages had not been transferred when the Florida office's data was migrated to a centralized system between March and June 2008, and could not be found. Acosta and staff denied knowledge of any deletion; an analysis of four other U.S. Attorney's offices found similar gaps in their U.S. Attorneys' email; and the office concluded that the gap "was most likely the result of a technological error."⁵

Findings

The office concluded that none of the five subjects committed professional misconduct in developing, negotiating or approving the agreement, because "no clear and unambiguous standard" required Acosta to indict or barred deferring to the state. It found that the agreement "was a flawed mechanism for satisfying the federal interest," that "Acosta's application of federalism principles was too expansive, his view of the federal interest in prosecuting Epstein was too narrow, and his understanding of the state system was too imperfect," and that the three supervisory subjects other than Acosta "left the USAO, were transitioning to other jobs, or were absent at critical junctures." It found that Acosta "exercised poor judgment" in failing to ensure that victims were told of Epstein's state plea hearing, and that the government's "lack of transparency and its inconsistent messages" gave victims and the public "the misimpression that the government had colluded with Epstein's counsel to keep the NPA secret from the victims." It found no evidence that the decision was "based on corruption or other impermissible considerations, such as Epstein's wealth, status, or associations."³

On Epstein's choice of lawyers, the office wrote that "a reasonable inference can be drawn that Epstein believed that hiring attorneys with relationships to the prosecutors would be beneficial to him," identifying a former U.S. Attorney for the district, a former deputy of Menchel's with whom Menchel had socialized, and Kenneth Starr and Jay Lefkowitz of Kirkland & Ellis, Acosta's former firm. It found that Menchel had not told his supervisors that he had briefly dated that former deputy in 2003, and assessed that it "would have been prudent" for him to do so. It found no evidence supporting a 2018 claim that the two-year plea offer was a favor to defense counsel.⁶

On the question raised in the press whether Epstein had been an intelligence asset, the office stated that it "found no evidence suggesting that Epstein was such a cooperating witness or 'intelligence asset,' or that anyone, including any of the subjects of OPR's investigation, believed that to be the case, or that Epstein was afforded any benefit on such a basis." When the office asked Acosta about his "apparent equivocation" on the question at a 2019 press conference, he answered "the answer is no"; the report notes that "Acosta was made aware that OPR could use a classified setting to discuss intelligence information." Villafaña had written in 2011 that a rumor of Epstein's cooperation in a Bear Stearns case was "urban myth."⁷

Review of the Draft by New York Prosecutors

Before the report was final, the chief of the Public Corruption Unit of the U.S. Attorney's Office for the Southern District of New York, whose office had indicted Epstein in 2019 and was then prosecuting Ghislaine Maxwell, reviewed the draft and on August 21, 2020 asked for two changes, which the office accepted: "at least one victim known to be a minor" became "at least one victim believed to be a minor," to "more accurately reflect[] our position in the bail arguments regarding Epstein," and a statement that investigators "were aware" that Epstein used hidden cameras in his New York house became that they "had learned" it. The report records that the subjects and others commented on the draft and that the office "did not, however, alter its findings and conclusions."²⁸

Later Use of the Report

The full report was refiled as a court exhibit in later cases, including Maxwell's appeal in the Second Circuit, No. 22-1426 (EFTA02844213); Government of the United States Virgin Islands v. JPMorgan Chase Bank, No. 22-cv-10904 (EFTA02809635); United States v. Maxwell, No. 20-cr-330 (EFTA02830776); and the Palm Beach Post's public records suit against State Attorney Dave Aronberg, CA Florida Holdings, LLC v. Aronberg, No. 50-2019-CA-014681 (EFTA02733081). Each copy reproduces the subjects' sworn statements and the contemporaneous emails, among them one in which Acosta wrote to Sloman and Lourie about meeting Epstein's lawyers, "This will end up [in the Department] anyhow, if we don't meet with them."⁹