Misunderstanding the “Epstein Files”

By R. Owen Williams

America is caught in a storm of misunderstanding where political gamesmanship has swamped the rule of law. Democrats and Republicans are spewing nonsense about the Epstein files. Democrats sometimes conflate the unsealing of legal documents with criminal disclosure, while Republicans claim that the Biden administration would have released them if they were as damning as Democrats suggest. Both positions are grossly simplistic and misleading, and both are exactly what Donald Trump wanted. That the president has suddenly flipped and now supports the Epstein Files Transparency Act (H.R. 4405/S. 2557 https://www.congress.gov/bill/119th-congress/house-bill/4405/text) may not change things as much as people might hope.

Here is the most straightforward way to understand this situation: Congress is not sitting on any “Epstein files,” the files demanded by the public (DOJ criminal files) cannot be released, and any files so far released are from civil cases or private collections beyond the control of the Department of Justice (DOJ) or Congress, the reporting on which the media has horribly muddled. Let’s dive into the facts.

First, there is no unified “Epstein file.” There is no master dossier labeled “Epstein files” held by any single institution. The term “Epstein files” is media shorthand for a tangle of documents and records scattered across multiple entities. More on this in a moment.

Second, many people assume all Epstein files are criminal files. The sources of Epstein documents (not “files”) are of three different categories: criminal, civil, and private. In criminal cases, where the government seeks punishment of an individual, documents are held by the Department of Justice (DOJ) and the federal judiciary—specifically the Southern District of New York (SDNY) in the 2019 Epstein case. (Epstein died before his case came to trial.) In civil cases, where private parties seek financial restitution, documents arise from lawsuits filed by alleged victims (such as Giuffre v Maxwell or Giuffre v Epstein Estate or Virgin Islands v JPMorgan); importantly, these are largely controlled by the courts and individual litigants, not the DOJ. Finally, the private documents consist of flight logs, calendars, address books, and personal emails that are not government property, though some have surfaced through unrelated litigation or the press.

Third, access to any of those documents varies sharply. CRIMINAL SOURCES: The SDNY investigation produced a large body of evidence and documents that are sealed due to a) grand jury secrecy rules, b) federal and state privacy laws protecting victims—especially minors, and c) rules about investigative confidentiality. Because Epstein died before trial, the documents in the criminal case were never made public and are unlikely ever to be released. CIVIL SOURCES: Civil case materials are released only at the discretion of judges, and some have already been. PRIVATE SOURCES: Private parties control the private documents, and portions of those have been published. The bottom line is that calling for the “release” of Epstein files is bunk. Several institutions hold a wild array of documents, many of which—by law—cannot be released. Democrats do us a disservice by suggesting otherwise.

On the other hand, Republican politicians certainly know that the criminal documents cannot be released, so suggesting that the Biden administration would have “leaked” them is reckless and misleading. Political hyperbole is protected speech, but Republican leaders must know that this is false.

Under court order, the Biden DOJ released thousands of pages of Epstein-related documents from civil cases, none of which provided evidence that Trump engaged in sex trafficking. (Though Trump has been convicted of sexual assault. https://apnews.com/article/trump-rape-carroll-trial-fe68259a4b98bb3947d42af9ec83d7db) But, again, the DOJ cannot release documents related to criminal cases. FBI investigative documents, grand jury testimony, witness interviews, prosecutorial notes, and evidence logs are all strictly off limits. Federal Rule of Criminal Procedure 6(e), for example, the DOJ policy regarding “uncharged persons,” and privacy laws (including Child Victims’ statutes such as 18 U.S.C. § 3509) all prohibit the release of documents Republicans claim Biden would have “leaked.” Anyone at DOJ who leaked such material would have been subject to firing, fines, or imprisonment, to say nothing of the political fallout for the Democratic Party that would have ensued. To repeat, knowledgeable Republican politicians understand how remote such an event would be.

As if all the political theater were not enough, the media has further scrambled the conversation. They have blurred the line between criminal and civil cases, treated unsealed civil documents as “new Epstein files,” and misled the public as to Congressional authority. Coverage often leaves the public believing that Congress is sitting on a treasure trove of “Epstein files” that could be revealed with the flip of a switch. Nothing could be further from the truth.

True, Congress can subpoena certain DOJ materials, but Congress cannot compel access to is grand jury materials or the unsealing of judicial documents. It is important to recall that the judiciary is an independent branch of government. While there is information that Congress could share publicly—such as House committee reports, or unsealed documents, or documents unprotected by secrecy laws—grand jury materials cannot be released without a judge’s order. Although Congress could subpoena non-grand-jury materials from the DOJ or pressure the DOJ to petition courts to unseal some materials, the current DOJ would fight these efforts in court.

The legislative bill now moving through Congress could undercut Trump’s ability to control what is, or is not, released, though it is also more political theater. Expect lots of redactions and mostly unclassified documents. Nothing about the Act alters the fact that Congress cannot force the DOJ or the judiciary to unseal judicially sealed materials. The Act also cannot compel the release of documents whose disclosure is prohibited by pre-existing federal laws. Stated another way, Congress can only force DOJ to release executive-branch records, but not legally guarded, judiciary records.

Ever after stipulating everything above, significant questions remain. What documents are unsealed that might shed light on Epstein’s unsavory relationships? Is there a “client list” kicking around somewhere? Why has Epstein’s accomplice, Ghislaine Maxwell, sentenced to twenty years in prison for multiple sex-trafficking crimes, suddenly received such preferential prison treatment?

There are still documents from Epstein-related cases that have not been released, including graphic materials, the identity of victims, certain depositions, some flight logs and calendars, and perhaps some private documents that will not be disclosed without a court order. Keep in mind, the standard of evidence is much lower in civil cases (“preponderance of evidence”) than in criminal cases (“beyond a reasonable doubt”). Nothing in a civil file is required to be criminal, vetted, corroborated, relevant, or proven. One of the most misunderstood elements of the Epstein story, probably the most unrealistic expectation, is that names might show up in civil cases that are relevant to (or that could give rise to) a criminal case. There is no reason to believe that people socially connected in a civil case, say Bill Clinton or Bill Gates, would be implicated in a possible criminal case.

Epstein kept copious and meticulous records. He kept “black books,” flight logs, visitor lists, calendars, and financial books, which together referenced hundreds of friends, business associates, academics, and donors. To be named among those people is not to be guilty of wrongdoing. More to the point, nowhere within all that does there appear to be a “client list.” If such a list existed, Maxwell would have used it for leverage; it would have surfaced in her trial. But it did not.

Judges and prosecutors can make recommendations, but they have no say over where or how a convicted felon is incarcerated; that is a decision of the Bureau of Prisons (BOP), which is part of the DOJ. The BOP has a custody and security scoring system that considers an inmate’s history of violence, escape history, and criminal record, none of which Maxwell had. Maxwell is older, which also lowered her perceived risk. Hard as it may be to accept, Maxwell’s prison placement was probably the routine outcome of BOP classification rules.

Much of this is dry, maybe even boring to many readers. So here comes the titillating part, the one question that stumps nearly everyone.

Why was President Trump so fiercely resisting the release of any information relating to the Epstein case? In keeping with his mercurial approach to just about everything, he recently changed his mind, but given that there is no public evidence that he has been the subject of a DOJ investigation on this matter (the main reason many Republican and Democratic experts alike say there are probably no damaging materials relating to the president), what was holding Trump back? It cannot be that he is reluctant to expose embarrassing associations or to invite unverified accusations, since those cats are out of the bag. Things could get more embarrassing, no doubt, but there has got to be something else behind Trump’s balk.

Consider the following strategic possibilities. One, we all know Trump lives for attention…it is his primary motivator and energizer. While he seems to subscribe to the notion that “all publicity is good publicity,” he is a master of deflecting attention, or deciding which negative attention to use and which to deflect. He thrives on ambiguity, largely because it helps him control the focus. He loves to sling mud, without submitting to threatening scrutiny himself. Trump’s style relies on simple villains, simple motives, and simple narratives, all of which have emotional resonance and political usefulness. Rather than hiding criminal culpability, this could be nothing more than a narcissistic “political strategy.”

A second possibility is that Trump fears transparency, not as regards Epstein, but as regards his other possible crimes. Demands for the release of information in the Epstein cases could give way to demands for information in the January 6 cases, the Mar-a-Lago classified documents case, or Georgia’s election-related grand jury records. Trump’s vulnerability in those cases seems greater, though the United States Supreme Court significantly extended criminal immunity for the president.

Public fixation on Epstein may well have been Trump’s plan all along. Perhaps it would have faded long ago, but for his priming of the pump. This whole saga seems destined for the dung heap of history. Perhaps the most important question here, then, is this: During our preoccupation with Epstein, what are the more substantive stories we’ve given insufficient attention or altogether missed? Time will tell whether Americans are as simple as Trump supposes us to be, and the extent to which the president is above the law.