The Justice Department almost never discloses information it collected on a criminal suspect outside of a criminal judicial proceeding, and for very good reasons. Revealing such information can endanger victims or other witnesses. And it denies due process to individuals who may be innocent — and who will never receive a trial — even though their names are prominently featured in the DOJ’s records.
Nevertheless, it’s looking increasingly likely that the Jeffrey Epstein files will become public.
The US House just passed legislation requiring the Justice Department to disclose its files on Epstein, who died while he was awaiting trial on sex trafficking charges. While this vote is not dispositive — the legislation would also need to pass the Senate, and President Donald Trump could veto it — Trump, who has previously resisted disclosure of the Epstein files, reversed course on Sunday night and called for House Republicans to support the bill. Senate Majority Leader John Thune has also signaled that he wants the Senate to pass the bill as soon as Tuesday night.
If the files do become public, they will reveal the details of the Justice Department’s investigation into one of the most notorious individuals in recent American history. Before his arrest on federal sex trafficking charges in 2019, Epstein had a long list of powerful friends and associates, some of whom were allegedly complicit in his crimes.
One of Epstein’s alleged victims, who described herself as his former “sex slave,” claims that he made her have sex with billionaires, a former governor, an ex-US senator, and a former British prince. Trump and Epstein were once close friends, although the two men reportedly had a falling out in 2004. In emails that were recently made public, Epstein also suggested that Trump knew about his abuse of underage girls but did not participate.
So it’s not surprising that there’s a bipartisan push to release the Justice Department’s Epstein files. Epstein, who was found dead in his jail cell while awaiting trial, wasn’t simply a very wealthy man accused of horrific crimes. He was also closely connected to many of the most powerful people on the planet, some of whom may have been his accomplices.
There is danger, however, in requiring the Justice Department to reveal the fruits of a criminal investigation — even in a case as compelling and as egregious as Epstein’s. Both federal judicial procedures and the Justice Department’s internal norms counsel strongly against releasing information about criminal investigations outside of a formal trial, and for several very good reasons.
The first reason is the constitutional guarantee of due process. The Epstein files are likely to contain many names. Some of these individuals may have committed crimes. Others will be innocent of any wrongdoing. Indeed, some people mentioned in the Epstein files may have been investigated entirely because the Justice Department wrongly suspected them of committing a crime.
If someone named in the Epstein files is arrested and receives a trial, they may be exonerated by a jury. But someone who is implicated in a crime by the Justice Department but never receives a trial has no way to clear their name. They could live with the stigma of a wrongful allegation for the rest of their lives, with no process available to vindicate themselves.
In the worst case, information in the Epstein files could be misinterpreted and lead to actual violence against complete innocents. Think of “Pizzagate,” a conspiracy theory that arose out of emails stolen from Hillary Clinton campaign chair John Podesta, and which inspired a man to fire a gun inside a Washington, DC, pizza restaurant.
Admittedly, the Epstein saga is marred by prosecutors who appear to have given him sweetheart deals. But it is still unlikely that anyone mentioned in the Epstein files could be convicted of a serious federal crime, because the Justice Department has possessed this information for several years across Democratic and Republican administrations.
So, if prosecutors believed that they had sufficient evidence to convict a public figure because of that figure’s ties to Epstein, they would have almost certainly filed charges already. Maybe the Trump administration wanted to protect one of Epstein’s associates, but it is unlikely that the Biden administration would have wanted to protect the same people.
A closely related reason the DOJ typically does not disclose investigatory information is to protect victims and witnesses. The Epstein files may include the names of victims that are not yet public. And even if the names are redacted, the files may contain identifying information that could out these victims to their families, friends, and employers. They are also likely to contain similar information about witnesses who could be endangered if some of Epstein’s powerful associates learn that the witness dropped a dime on them.
The fact that Epstein had close ties to so many powerful political figures makes his case unusual, but it does not make it unique. And that raises a third reason to hesitate before releasing the Epstein files: There have been other cases where political figures sought confidential information about criminal suspects for political reasons, and there will be more cases in the future.
Each time Congress or the Justice Department makes an exception to the current norms against disclosure, it weakens those norms. And that makes it harder to resist future attempts to reveal information that could harm victims, witnesses, and the integrity of the justice system, solely because one party or the other might gain a political advantage if that information is released.
The Justice Department is supposed to be most concerned about due process in cases involving political figures
The Justice Department, former deputy attorneys general Jamie Gorelick and Larry Thompson wrote in 2016, “operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election.” These traditions exist, among other reasons, to “avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.”
Due process concerns loom over any decision to disclose investigatory information outside of a trial, because of the risk that an innocent person may be implicated in a crime without being given a formal opportunity to defend themself. But these concerns are particularly acute in investigations that involve political figures.
Thus, as Gorelick and Thompson write, the Justice Department has historically had particularly robust safeguards against revealing information that could impact an election. For decades, they write, the DOJ warned its personnel against “even returning indictments involving individuals running for office” during the 60-day period before an election.
This policy reflects not just a narrow concern about indicting political candidates, but also a broader concern that the criminal justice system is rarely the right place to resolve political disagreements. While there are cases where the Justice Department should bring criminal charges against a major political figure, it is important that these figures receive due process — including a formal proceeding that will allow them to clear their names.
To be sure, Epstein was not an elected official. But the whole reason a majority of the US House wants to force the DOJ to disclose its files on Epstein is because of his close ties to elected officials and other major political figures. Under the US Constitution, these individuals have a right to formally challenge any allegations that the Justice Department levies against them.
Two high-profile cases — one involving a Republican candidate and one involving a Democrat — reveal how the Justice Department can change history when it is insufficiently cautious in politically charged cases.
Eight days before the 2008 election, then-Sen. Ted Stevens (R-AK) was convicted on federal corruption charges. But the Justice Department later uncovered serious prosecutorial misconduct, including withholding evidence from Stevens’s defense lawyers. Shortly after his confirmation to lead the Justice Department in 2009, Attorney General Eric Holder concluded that the case against Stevens must be dismissed.
Still, the conviction survived just long enough to change the result of a US Senate election. It almost certainly explains why Stevens lost his reelection bid to Democrat Mark Begich, despite Alaska’s strong Republican lean.
Consider, as well, the debacle of 2016. Gorelick and Thompson wrote their 2016 piece on disclosures by the Justice Department after then-FBI Director James Comey publicly criticized Democratic presidential candidate Hillary Clinton’s use of a private email address to conduct State Department business, and then revealed that he was reopening an FBI investigation into Clinton just days before the 2016 election.
No charges were ever filed against Clinton, and the State Department eventually concluded that Clinton’s actions were a minor mistake. A 2019 report found that Clinton’s use of a personal email account “added an increased degree of risk” but that “there was no persuasive evidence of systemic, deliberate mishandling of classified information.”
Yet, the emails story absolutely dominated news coverage of the 2016 election — fueled in large part by the Justice Department’s repeated insinuations that Clinton had done something very wrong. As with the 2008 Alaska election, it is almost certain that Comey’s decision to impugn Clinton’s character changed the result of the 2016 presidential election, leading to the rise of Donald Trump and the transformation of the Republican Party from a traditional center-right party into a personalist movement centered around Trump.
If the Epstein files are released, a similar series of events could play out in 2026 or 2028. Epstein interacted with high-ranking officials in both parties, and some of these individuals may have committed crimes. But it is unlikely that the Justice Department would have, during both the Biden and first Trump administration, ignored compelling evidence that an elected official sexually abused one of Epstein’s victims.
Instead, the Epstein files are likely to reveal inconclusive evidence, non-criminal interactions between Epstein and public figures, and other innuendo that could end someone’s political career. As the Stevens and Clinton examples show, such innuendo does not prove that someone committed a crime. But it can reshape US politics and change the course of history.
Epstein’s victims have a right to privacy, as do the witnesses against him
If Epstein had lived until his trial, much of the information in the DOJ’s possession — including what the Justice Department learned from interviews with victims and witnesses — would have become public then. The Sixth Amendment gives all criminal defendants, including Epstein, the right to “be confronted with the witnesses against him.” Sometimes, society must ask witnesses and victims to set aside their personal privacy in order to secure a conviction against a particularly dangerous offender.
But Epstein is dead, and that changes this moral calculus. Disclosing the Epstein files now means revealing sensitive, private information about innocent people and victims without the corresponding benefit of convicting a horrid sex offender.
Indeed, this concern about victims is one of the reasons why a federal judge recently ruled that documents arising out of Epstein’s grand jury proceeding should not be made public. “The Court received a very compelling letter,” Judge Richard Berman wrote in that decision, from victims’ rights lawyers arguing that “any disclosure of grand jury material — especially materials that could expose or help identify victims in any way — directly affects [federal law’s] fairness, privacy, conferral, and protection guarantees.”
One possible rebuttal to this argument is that Epstein was particularly pernicious, and his associates include particularly high-profile public figures — including, at least until Trump and Epstein’s falling out in 2004, the sitting president of the United States. So maybe it makes sense to make an exception from the ordinary practice here to ensure that the public knows about Epstein’s ties to any particularly high-ranking officials.
But once Congress agrees that confidential Justice Department information should be made public in one case, it makes it that much harder to resist future calls to make that information public. And there will be many future cases where someone seeks confidential information that concerns very high-ranking officials.
In 2022, for example, several Republican senators, led by Sen. Josh Hawley (R-MO), accused then-Supreme Court nominee Ketanji Brown Jackson of being too soft on sex offenders. If you care to know the details of these allegations, I wrote about them at length here — and also explained why I think the allegations were misleading and unfair.
During Jackson’s confirmation hearing, 10 GOP senators wrote to then-Senate Judiciary Chair Dick Durbin (D-IL) asking him to pause Jackson’s confirmation process until the Biden administration disclosed sensitive and confidential information regarding individual criminal defendants that Jackson had sentenced. In rejecting this request, Durbin warned that the information sought by these Senate Republicans is “typically filed under seal” and can contain “highly sensitive personal information…about innocent third parties and victims.”
The GOP senators’ allegations against Jackson fizzled, and she was confirmed. But one reason why Durbin so easily deflected this attempt to reveal such sensitive information is that there are few, if any, precedents for this kind of disclosure. If the Epstein files had been public at the time, Senate Republicans could have pointed to that precedent to justify disclosure of these sentencing documents.
Moreover, while the allegations against Jackson were spurious, Senate Republicans made them when she was a nominee for a lifetime seat on the most powerful institution in the United States. If the Epstein files must be disclosed because they concern powerful individuals, then the same logic would seem to require disclosing any information related to a Supreme Court nominee’s confirmation.
And, of course, once that happens, that disclosure will be cited as a precedent to justify future disclosures, until the most sensitive information about victims and witnesses routinely gets used to levy political attacks on people seeking high office.
Jeffrey Epstein committed monstrous acts, and his alleged crimes are all the more horrific because he was so closely associated with so many powerful individuals. But the evidence against him and his associates has now been combed over by prosecutors in two presidential administrations. If there was enough evidence in there to warrant criminal charges against a public figure, those charges would almost certainly have been brought.
The question now is whether to force Epstein’s victims to relive the worst moments of their lives, to potentially endanger witnesses, and to cast aspersions on people who very well may have done nothing illegal. If the Justice Department — and society more broadly — needed to stomach those costs in order to secure a conviction against someone as repugnant as Jeffrey Epstein, then doing so would be justified.
But, in the absence of such a compelling case for disclosure, the Justice Department’s confidentiality norms exist for very good reasons. Congress should be exceedingly cautious about disturbing them.
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