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Case 1:20-cr-00330-PAE Document 204-3 Filed 04/16/21 Page 162 of 348 As the U.S. Attorney, and in the absence of evidence establishing that his decision was motivated by improper factors, Acosta had the “plenary authority” under federal law and under the USAM to resolve the case as he deemed necessary and appropriate. As discussed in detail below, OPR did not find evidence establishing that Acosta, or the other subjects, were motivated or influenced by improper considerations. Because no clear and unambiguous standard required Acosta to indict Epstein on federal charges or prohibited his decision to defer prosecution to the state, OPR does not find misconduct based on Acosta’s decision to decline to initiate a federal prosecution of Epstein. B. No Clear and Unambiguous Standard Precluded Acosta’s Use of a Non-Prosecution Agreement to Resolve the Federal Investigation of Epstein OPR found no statute or Department policy that was violated by Acosta’s decision to resolve the federal investigation of Epstein through a non-prosecution agreement. The prosecutor’s broad charging discretion includes the option of resolving a case through a non-prosecution agreement or a related and similar mechanism, a deferred prosecution agreement. United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir. 2016). These agreements “afford a middle-ground option to the prosecution when, for example, it believes that a criminal conviction may be difficult to obtain or may result in unwanted collateral consequences for a defendant or third parties, but also believes that the defendant should not evade accountability altogether.” /d. at 738. As with all prosecutorial charging decisions, the choice to resolve a case through a non-prosecution agreement or a deferred prosecution agreement “resides fundamentally with the Executive” branch. /d. at 741. OPR found no clear and unambiguous standard in the USAM prohibiting the use of a non- prosecution agreement in the circumstances presented in Epstein’s case. The USAM specifically authorized and provided guidance regarding non-prosecution agreements or deferred prosecution agreements made in exchange for a person’s timely cooperation when such cooperation would put the person in potential criminal jeopardy and when alternatives to full immunity (such as testimonial immunity) were “impossible or impracticable.” USAM § 9-27.600 (comment).”°° The “cooperation” contemplated was cooperation in the criminal investigation or prosecution of another person. In certain circumstances, government attorneys were required to obtain approval from the appropriate Assistant Attorney General before entering into a non-prosecution agreement in exchange for cooperation. Epstein, however, was not providing “cooperation” as contemplated by the USAM, and the USAM was silent as to whether a prosecutor could use a non-prosecution agreement in circumstances other than in exchange for cooperation in the investigation or prosecution of another. Notably, although the USAM provided guidance and approval requirements in cases involving cooperation, the USAM did not prohibit the use of a non-prosecution agreement in other situations. Accordingly, OPR concludes that the USAM did not establish a clear and unambiguous obligation prohibiting Acosta from ending the federal investigation through a non-prosecution 205 USAM § 9-27.650 required that non-prosecution agreements in exchange for cooperation be fully memorialized in writing. Although this requirement was not applicable for the reasons given above, the NPA complied by fully memorializing the terms of the agreement. 136 DOJ-OGR- 00003338