DOJ has strong norms against releasing information outside of a criminal trial, and for good reasons.
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.SCOTUS, Explained
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
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.Key takeaways
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.
