A former federal prosecutor analyzes the legal questions surrounding the Justice Department’s release of the Epstein files

Jeff Bennett:

For a closer look at the legal issues surrounding this latest release of the Epstein files, we turn to Barbara McQuaid. She’s a former federal prosecutor and professor at the University of Michigan Law School.

It’s great to have you back on the show.

Barbara McQuaid, former US Attorney General:

Thanks Jeff. Glad to be here with you.

Jeff Bennett:

So the Justice Department says Friday’s release brings it into compliance with the Epstein Files Transparency Act, but millions of files, as you well know, remain unreleased, withheld for reasons like attorney-client privilege, privacy concerns, and the like.

Democrats are now demanding access to the full record. From a legal standpoint, did the Department of Justice actually comply with the law?

Barbara McQuaid:

Well, no.

First of all, the deadline was December 19, and here we are several weeks after that deadline. But also, in light of all these revisions, Jeff, I think there’s room to say here that they’re not committed to it.

Within 15 days, which should have been 15 days as of December 19, the Justice Department must also release a record explaining what was redacted and why. Among the things they said they redacted were internal memos and things that revealed their trading privileges.

But this is specifically spelled out in the statute that requires production. This could be something that the Department of Justice and Congress might have to sue if the Department of Justice continues to refuse to provide these things.

But I think the sheer amount of redactions seems to go beyond what might be obvious, like names of survivors and other things. And so I think we’re going to have to see that record first before Congress can be sure exactly what was withheld.

Jeff Bennett:

Why have the perpetrators other than Jeffrey Epstein and Ghislaine Maxwell not been charged, despite the years of investigation and the amount of information that has now become public?

Barbara McQuaid:

Well, of course, we still don’t know what’s behind those redaction bars.

But I think what the audience is seeing here is that there is a difference between things that are wrong, morally reprehensible, ambiguous, and even terrible. But to prove a crime, you must prove that someone is actually involved in sex trafficking. This means transporting an underage person across state lines for the purpose of engaging in sexual acts, or, if not a minor, doing so through threat or coercion.

It takes a level of intention, knowledge, and actions to do these things. I don’t know that we’ve seen any evidence of that happening. Certainly simply associating with Jeffrey Epstein or even making comments about women is not enough to bring a case.

And so, as I said, we don’t know what’s behind these redaction bars, but I wouldn’t be surprised if the Department of Justice doesn’t have enough evidence to prove some of these issues.

Jeff Bennett:

This may address a question I’ve seen a lot online since Friday’s release, which is, why did the Justice Department, under multiple presidential administrations, include the Biden administration under Merrick Garland, and why didn’t they pursue broader prosecutions tied to the Epstein network?

Barbara McQuaid:

Yes, I think it’s the same thing.

Therefore, it is certain that Jeffrey Epstein was accused before he committed suicide, and Ghislaine Maxwell was charged and convicted. I think her trial took place in 2021. But just because – we had a term that we used when I was a prosecutor, which is terrible, but it’s legal.

Sometimes, people engage in truly outrageous behavior. You investigate, but are unable to prove the elements of the crime beyond a reasonable doubt. There is certainly some suspicious information going on here, but it’s actually one of the reasons the Department of Justice usually doesn’t release records unless there’s an indictment.

This is to protect people’s reputations when there is already this kind of egregious behavior that does not rise to the level of a crime. So we’re seeing all these revelations about these rich, powerful men and their affiliation with Jeffrey Epstein.

Sure, they may have shown poor judgement. And maybe they attended parties and went to his island and other things. But if they haven’t been involved in the crime of sex trafficking, that’s really inappropriate. Normally, the Department of Justice shields people like this from detection to protect their reputations when they cannot prove a criminal case.

Jeff Bennett:

We’ve also seen some survivors say their identifying information was released in error. I imagine, in these documents, they have not been properly redacted.

What obligation does the Department of Justice have to survivors of such notices? What corrective steps, if any, can be taken at this stage to correct the error?

Barbara McQuaid:

Well, the law itself says they shouldn’t produce, but rather they must withhold names and other identifying information from survivors and protect them from production, which is par for the course.

It is customary, when the prosecution makes discovery for a defendant, to redact those names and provide only what is necessary to share with them for a fair trial. And so, in some cases, it seems sloppy to me.

Now I know they had millions of documents and had to review them in a very short period of time, but that’s the law. You have to make those your priorities. Maybe there are some things that you cannot do this month. There may be some immigrants, Jeff, who can’t be arrested that month because you need prosecutors to review the documents, consistent with the law.

What can be done about it? I assume there may be civil lawsuits to the extent that survivors want to file a lawsuit to point out that they were defamed in some way by providing their names, in violation of this federal law. I think they could have some civil remedies available.

Jeff Bennett:

I also want to make you think about another important thing. This is what President Trump is proposing to Republicans today, as he put it, nationalizing the voting process.

He said it is necessary to prevent what he calls crooked states led by Democrats from allowing illegal voting. Here’s what he told Dan Bongino.

President Donald Trump:

These people were brought to our country to vote, and they are voting illegally. Surprisingly, Republicans are not tougher on this. Republicans should say we want to take control. We must take over the voting process in at least 15 places. Republicans should nationalize voting.

Jeff Bennett:

When the president says “those people,” he’s talking about illegal immigrants.

The Brennan Center for Justice has repeatedly said that is a lie. It’s a conspiracy theory. There is no widespread voting by non-citizens. But from a constitutional point of view, what does nationalizing elections mean? Does the federal government have the authority to do this when elections are under the authority of state governments?

Barbara McQuaid:

No, the Constitution says that the states determine the date, place and manner of holding elections. This has always meant that we do not have a single national election. We have 50 elections across our country on Election Day.

And there’s a good reason for that. One is state sovereignty, but the other is that this kind of decentralized system is what protects us from some kind of large-scale fraud attacking our nation or collecting a single database of all voting records.

But as far as election administration is concerned, it is all done at the state level under the Constitution. So the only way to nationalize elections will be through amending the constitution.

Jeff Bennett:

Barbara McQuaid, always a pleasure to talk to you. Thank you.

Barbara McQuaid:

Thank you Jeff.