The case against releasing the Epstein files

From left, future President Donald Trump and his girlfriend (and future wife), former model Melania Knauss, financier (and future convicted sex offender) Jeffrey Epstein, and British socialite Ghislaine Maxwell pose together at the Mar-a-Lago club, in Palm Beach, Florida, on February 12, 2000. | Davidoff Studios/Getty Images

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.

Key takeaways

The Justice Department rarely releases information it discovers in criminal investigations outside of a court proceeding.
This practice is intended to protect individuals’ due process rights, and also to protect victims and witnesses.
Releasing the Epstein files endangers those people without the benefit of a trial.
It also creates a precedent that will be used to further undermine the Justice Department’s norms against the politicized release of investigative documents.

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........

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