DOJ OPR Review of the Epstein Non-Prosecution Agreement

Overview of the OPR Review

The Department of Justice Office of Professional Responsibility (OPR) conducted a multi-year review of the conduct of federal attorneys involved in the 2007 Non-Prosecution Agreement (NPA) with Jeffrey Epstein. The review, which was completed in November 2020, examined whether the attorneys who negotiated and approved the NPA — particularly former U.S. Attorney Alexander Acosta and members of his staff — committed professional misconduct in their handling of the case.

The OPR's conclusion was notable and controversial: while the office found that the attorneys exercised "poor judgment" in several aspects of their handling of the case, it stopped short of finding professional misconduct — a distinction with significant legal and professional consequences.

What is the Office of Professional Responsibility?

The OPR is the internal watchdog within the Department of Justice responsible for investigating allegations of misconduct by DOJ attorneys. Unlike the DOJ Inspector General, which investigates non-attorney employees and programmatic issues, the OPR has specific jurisdiction over the conduct of federal prosecutors and other DOJ lawyers in the exercise of their legal duties.

An OPR finding of professional misconduct can result in referral to state bar associations for disciplinary proceedings, internal sanctions, and other professional consequences for the attorneys involved. A finding of "poor judgment," by contrast, carries no formal disciplinary implications — it is essentially an official expression of disapproval without teeth.

The Scope of the Review

The OPR review examined several specific aspects of how the NPA was negotiated and implemented:

The Decision to Decline Federal Prosecution

Central to the review was the decision by the U.S. Attorney's Office for the Southern District of Florida to decline filing federal sex trafficking charges against Epstein, despite having assembled evidence that career prosecutors and FBI agents believed was sufficient for indictment.

The OPR examined:

• The strength of the evidence available to prosecutors
• The legal viability of federal sex trafficking charges
• The rationale provided by Acosta and his team for declining federal prosecution
• Whether the decision was influenced by improper considerations, including Epstein's wealth, social status, or political connections

The Immunity Provision

The OPR scrutinized the NPA's unusually broad immunity clause, which extended protection from federal prosecution not only to Epstein but to his unnamed "potential co-conspirators." This provision was highly unusual in federal plea agreements and had the effect of shielding individuals who may have actively participated in or facilitated Epstein's crimes.

The review examined:

• Whether the breadth of the immunity provision was justified by the circumstances
• Whether proper authorization was obtained within the DOJ for such an expansive grant of immunity
• Whether the provision reflected a standard practice or an anomalous departure from normal prosecutorial norms

Victim Notification Failures

The OPR also examined the failure to notify victims of the plea agreement, as required by the Crime Victims' Rights Act (CVRA). In 2019, Judge Kenneth Marra had found that this failure violated federal law, and the OPR review addressed whether the attorneys' decision to keep victims in the dark constituted professional misconduct.

Communications with Epstein's Defense Team

The review examined the extensive communications between Acosta's office and Epstein's defense attorneys, who included some of the most prominent lawyers in the country: Kenneth Starr (former independent counsel in the Clinton investigation), Jay Lefkowitz (former Bush administration official), Alan Dershowitz (Harvard Law professor), and others.

Of particular interest was a reported meeting between Acosta and Epstein defense attorney Jay Lefkowitz at the Marriott hotel in West Palm Beach in October 2007, during which the outlines of the NPA were allegedly discussed. Acosta initially failed to disclose this meeting to career prosecutors in his office.

The OPR's Findings

"Poor Judgment" — Not Misconduct

The OPR concluded that the attorneys involved exercised "poor judgment" in several areas but did not commit professional misconduct. Specifically, the OPR found:

On the decision to decline prosecution: The OPR acknowledged that the evidence supported federal charges but found that the decision to enter the NPA rather than proceed to indictment reflected a legitimate exercise of prosecutorial discretion, even if the reviewers personally disagreed with the outcome.

On the immunity provision: The OPR found that the breadth of the immunity clause was unusual and poorly justified but did not rise to the level of misconduct because Acosta's office had documented a rationale — however thin — for the provision.

On victim notification: The OPR found that the failure to notify victims was a serious error that contributed to the violation of the CVRA, but attributed the failure to an incorrect interpretation of the law rather than an intentional effort to conceal the agreement from victims.

On the Lefkowitz meeting: The OPR found that Acosta's meeting with Lefkowitz was inappropriate and that Acosta's failure to disclose it to career prosecutors was troubling, but concluded that it did not, by itself, constitute misconduct.

Dissenting Views

While the OPR review represented the official position of the office, there were reportedly internal disagreements about the conclusions. Some OPR staff members believed that the totality of the circumstances — the weak rationale for the NPA, the extraordinarily broad immunity, the secret meeting, and the victim notification failure — amounted to professional misconduct when viewed as a whole, even if no single act crossed the line in isolation.

Reactions to the Review

The OPR findings were met with sharp criticism from multiple quarters:

Victims and advocates. Victims' attorneys, including Brad Edwards and Paul Cassell, criticized the "poor judgment" finding as inadequate given the severity of the failures documented in the review. They argued that the distinction between "poor judgment" and "misconduct" was a distinction without meaningful accountability.

Legal scholars. Several legal commentators noted that the OPR's threshold for finding misconduct appeared unreasonably high, particularly given that a federal judge had already found a statutory violation arising from the same conduct.

Congressional response. Members of Congress who had investigated the NPA expressed frustration with the OPR's conclusions. The review was seen by some as another example of the department protecting its own.

Acosta's position. Acosta, who had resigned as Secretary of Labor in July 2019 following Epstein's arrest, did not face professional consequences as a result of the OPR review. The "poor judgment" finding did not trigger referral to bar disciplinary authorities.

The "Poor Judgment" vs. "Misconduct" Distinction

The distinction between "poor judgment" and "professional misconduct" in the OPR's framework is significant:

Professional misconduct requires a finding that the attorney intentionally violated a clear legal obligation, acted in reckless disregard of a known legal obligation, or engaged in conduct that clearly falls below the minimum standard expected of a DOJ attorney. A misconduct finding can result in referral to state bar associations and formal disciplinary action.

Poor judgment is a lesser finding that acknowledges errors or questionable decisions without attributing them to intentional wrongdoing or recklessness. It results in no formal consequences.

Critics have argued that this framework creates a structural incentive for the OPR to reach the lesser finding in cases involving senior officials, as a misconduct finding would have significant career and legal implications for the attorneys involved.

The Broader Context

The OPR review was conducted against the backdrop of several other developments in the Epstein case:

• Epstein's arrest and death (July–August 2019) had renewed public attention to the NPA
• Judge Marra's CVRA ruling (February 2019) had already found a legal violation
• The Maxwell prosecution (2020–2021) was demonstrating that co-conspirators could be successfully prosecuted
• Congressional investigations into the handling of the Epstein case were ongoing

The review was completed in November 2020, during the transition between the Trump and Biden administrations. Its release received less public attention than it might have otherwise, given the political environment at the time.

Significance of the Review

Despite its controversial conclusion, the OPR review is a significant document in the Epstein case for several reasons:

It confirmed institutional failures. Even the "poor judgment" finding acknowledged that serious errors were made in the handling of the NPA, providing an official government admission that the process was flawed.

It documented the decision-making process. The review compiled and analyzed the internal decision-making that led to the NPA, creating a record that would otherwise remain inaccessible.

It highlighted systemic issues. The review raised broader questions about prosecutorial discretion, victim notification requirements, and the influence of well-connected defense attorneys on federal case outcomes — issues that extend far beyond the Epstein case.

It fueled calls for reform. The perceived inadequacy of the "poor judgment" finding contributed to calls for strengthening the CVRA, reforming the OPR process, and increasing transparency in federal plea negotiations.

Sources and Further Reading

• DOJ Office of Professional Responsibility
• Doe v. United States, Case No. 08-80736-CIV-MARRA (S.D. Fla. 2019)
• Julie K. Brown, "Perversion of Justice," Miami Herald (November 2018)
• Alexander Acosta, Senate Confirmation Testimony (2017)
• Brad Edwards, Relentless Pursuit (2020)