Why Biden didn't release the Epstein files — but maybe should have

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Why Biden didn’t release the Epstein files — but maybe should have

In December, former Vice President Kamala Harris told late-night host Jimmy Kimmel why the Biden Administration had not released the so-called Epstein files during the four years that President Joe Biden was in office.

“We strongly and rightly believed that there should be an absolute separation between what we wanted as an administration and what the Department of Justice did,” she said. “We absolutely adhered to that.”

Just a month earlier, Harris had criticized President Trump for waiting for Congress to act. “Release the files,” she said. “He is the president of the United States, the head of the executive branch.”

So which is it? Did Biden have the authority to release the files or not? Should he have wielded it or not? The answer is a bit of both.

What Harris is suggesting is that Biden left that decision to his Attorney General, Merrick Garland. Garland viewed it as his role to defend the Justice Department’s independence vigorously from political influence. That meant staying out anything that could even be perceived as Democratic-leaning.

The Epstein files are not one set of files on one server somewhere in the Justice Department. They are a compilation of materials stretching back decades across numerous state and federal agencies, grand juries, and court cases. It includes indictments, superseding indictments, plea agreements (including Epstein’s 2008 plea deal to avoid a 60-count indictment by the Justice Department), search warrants, arrest warrants, trial transcripts (such as that of his sidekick, Ghislaine Maxwell) and exhibits, sentencing memoranda and related rulings.

Some of these are public by default unless judges ruled to seal them. Numerous civil lawsuits filed by victims and others have also placed information on the public record through the exchange of written discovery, such as emails, internal correspondence, financial records and sworn deposition testimony.

Another category of records is grand jury materials, including transcripts, testimony by witnesses, and exhibits. These are presumptively confidential under the Federal Rules of Criminal Procedure, absent a court order — or legislation by Congress authorizing their release.

Even then, these are not the bulk of the Epstein records, which publicly now include more than 3 million pages of heavily-redacted documents accessible to the public through a Justice Department portal created pursuant to the Epstein Files Transparency Act, which passed last November. In August, a federal judge had denied the Trump administration’s request for an order releasing Epstein-related grand jury material.

After that, there are more general law enforcement investigative files, including what are known as FBI “302” summaries of witness interviews; evidence logs; surveillance materials; seized digital records such as hard drives, contact lists, flight logs; and internal Justice Department memoranda, emails and notes.

Some of this information — such as the identities of victims or individuals implicated in the Epstein story but never charged with a crime — is protected from public disclosure to some extent by the federal Privacy Act. Other information is covered by the attorney-client privilege or similar doctrines.

Law enforcement also usually refuses to release materials related to ongoing investigations, on the rationale that it could compromise future prosecutions. But a good amount of what is known as the Epstein files falls within the government’s discretion to release without a court order, subpoenas by Congress, or special legislation. Attorney General Pam Bondi publicly conceded as much months before Congress ordered release of the Epstein files in the new law. And that discretion to release the files applied to the Biden administration, too.

Members of the public have also sought release of certain Epstein records under the Freedom of Information Act. Such requests leave it to the government’s discretion whether to withhold certain information under various statutory exceptions. The validity of the government’s use of certain exceptions to withhold information often winds up in litigation before federal courts, but the government retains the discretion to waive legal exceptions, assuming no other law bans public release.

Although Harris is correct that attorneys general before Trump long operated with independence from presidents after the Watergate scandal, that job has always fallen within the direct chain-of-command to the president. There is no law, constitutional or otherwise, mandating their independence. It is merely a norm, damaged during the first Trump administration when, for example, former Attorney General Bill Barr intervened to delay and repackage the findings of Special Counsel Robert Mueller into Russian interference in the 2016 election, all to Trump’s political and legal advantage.

Garland tried but failed to resuscitate the norm by setting an example of independence and adherence to the rule of law, not politics.

Biden and Garland went by the book. They adhered to institutional values rather than let the public know before the 2024 election that, as Rep. Jamie Raskin (D-Md.) recently said, the Republican candidate for president was named in the files “more than a million” times.

Whether that kind of information would have mattered to voters is something lost to history.

Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer — and Why.”

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