The case against releasing the Epstein files

1 hour ago7 min read

The Justice Department almost never discloses information it collected on a criminal suspect outside of a judicial proceeding, and for very compelling reasons rooted in the constitutional guarantee of due process. Revealing such information can endanger victims or other witnesses, and it unfairly denies due process to individuals who may be entirely innocent yet find their names prominently featured in official records without the forum of a trial to clear them.Nevertheless, the political momentum for releasing the Jeffrey Epstein files is now formidable. The US House has passed legislation compelling the Justice Department to disclose its files on the financier who died while awaiting trial on federal sex trafficking charges.While this vote is not yet dispositive—the legislation must also pass the Senate, and President Donald Trump could theoretically veto it—the political landscape shifted dramatically when Trump, who had previously resisted such disclosure, reversed course and called for House Republicans to support the bill. Senate Majority Leader John Thune has since signaled a desire for the Senate to pass the bill imminently.If these files become public, they will unveil the granular details of one of the most sprawling federal investigations in recent memory, probing a man with a long list of powerful friends and associates, some of whom were allegedly complicit in his monstrous crimes. One of Epstein’s alleged victims, who described herself as his former 'sex slave,' claims he compelled her to have sex with billionaires, a former governor, an ex-US senator, and a former British prince.Trump and Epstein were once close, frequenting Mar-a-Lago together before a reported falling out in 2004; recently publicized emails even suggest Epstein believed Trump knew about his abuse of underage girls but did not participate. This nexus of power and depravity explains the bipartisan push for transparency, yet it also underscores the profound dangers of politicizing the Justice Department's investigative protocols.Federal judicial procedures and the Department’s own long-standing internal norms counsel strongly against such disclosures outside of a formal trial. The primary concern is the constitutional guarantee of due process.The Epstein files will inevitably contain numerous names—some of individuals who may have committed crimes, others who are innocent of any wrongdoing, and still others who were investigated based on erroneous suspicions. An individual arrested and tried can be exonerated by a jury, but someone merely implicated in a Justice Department file, without ever facing charges, has no procedural mechanism to vindicate themselves, potentially living under a cloud of stigma for life.In the worst-case scenario, this information could be misinterpreted, fueling dangerous conspiracy theories akin to 'Pizzagate,' which led to a real-world shooting. A closely related reason for confidentiality is the protection of victims and witnesses.The files may contain the names of victims not yet public, or identifying details that could expose them to their families, friends, and employers. They are also likely to contain information about witnesses who could be endangered if Epstein’s powerful associates learn they cooperated with authorities.The fact that Epstein moved in such rarefied circles makes his case unusual, but not unique, and herein lies a third, systemic danger: each time Congress or the Justice Department makes an exception to the norms against disclosure, it weakens those norms, creating a precedent that will be weaponized in future political battles. We have seen this before.The Justice Department has historically maintained robust safeguards against revealing information that could influence an election, warning personnel against even returning indictments involving candidates in the 60 days before an election. This policy reflects a broader understanding that the criminal justice system is rarely the appropriate arena for resolving political disputes.Consider the case of Senator Ted Stevens, convicted on corruption charges just days before the 2008 election; the conviction was later dismissed due to prosecutorial misconduct, but it survived long enough to cost him his seat. Similarly, the 2016 debacle, wherein then-FBI Director James Comey publicly criticized Hillary Clinton's email practices and reopened an investigation days before the election, demonstrates how Justice Department insinuations, absent formal charges, can irrevocably alter the course of history.No charges were filed against Clinton, and a subsequent review found her actions constituted a minor mistake, yet the story dominated the election and almost certainly contributed to Trump's victory. If the Epstein files are released, a similar dynamic could unfold in the 2026 or 2028 elections.The files are likely to contain inconclusive evidence, non-criminal interactions, and innuendo that could destroy political careers without proving any crime. Furthermore, the moral calculus for disclosure has changed with Epstein’s death.Had he lived, much of this information would have become public at trial, as the Sixth Amendment grants defendants the right to confront witnesses against them. Society sometimes must ask victims to sacrifice their privacy to secure a conviction against a dangerous offender.But with Epstein dead, we are asking victims to relive their trauma and witnesses to assume risk without the corresponding benefit of a conviction. As Judge Richard Berman noted in a related ruling, disclosing such material 'directly affects fairness, privacy, conferral, and protection guarantees' for victims.The precedent set here will not remain confined to this singular, horrific case. We have already seen attempts to leverage such precedents, as when Republican senators during Ketanji Brown Jackson's Supreme Court confirmation hearings demanded the disclosure of sensitive sentencing documents concerning individual defendants, which typically contain highly personal information about victims and third parties.While that effort failed, the existence of a precedent like the Epstein disclosure would provide a powerful tool for future political actors seeking to mine confidential Justice Department files for partisan advantage. The evidence against Epstein and his associates has been scrutinized by prosecutors across two presidential administrations.If compelling evidence existed to warrant criminal charges against a major public figure, those charges would almost certainly have been filed by now. The question before us is whether we are willing to force Epstein’s victims to relive their worst moments, endanger witnesses, and cast aspersions on people who may have done nothing illegal, all without the justifying purpose of a trial. The Justice Department’s confidentiality norms exist for profound and necessary reasons; Congress should be exceedingly cautious about dismantling them, for the precedent set today will haunt the integrity of our justice system for years to come.

#Jeffrey Epstein

#Justice Department

#due process

#victims

#political figures

#editorial picks news

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