The Justice Department could appeal the ruling, but doing so would be foolish.

I n a thoroughgoing rebuke of the Trump Justice Department, a federal district judge in Manhattan has denied its motion to unseal grand jury transcripts in the investigation of Jeffrey Epstein and Ghislaine Maxwell.

On Monday, Judge Paul Engelmayer, an Obama appointee in the Southern District of New York (SDNY), issued a 31-page opinion and order rejecting the administration’s position that the grand jury materials were of historical significance. A Florida federal court had previously denied a similar Trump DOJ motion to unseal grand jury proceedings that had taken place years earlier in Palm Beach.

To repeat what I outlined last month (see here and here), federal grand jury testimony and exhibits are secret pursuant to a rule of criminal procedure: Rule 6(e). As prescribed in the rule, exceptions to the default position of secrecy are essentially limited to disclosures in furtherance of other investigations or judicial proceedings. The Second Circuit, which controls SDNY cases, recognizes a narrow additional license to disclose in “special circumstances” — rare occasions in which matters of true historical significance remain concealed from the public. While the Second Circuit relies on the judiciary’s “supervisory authority” over grand juries to permit this narrow avenue of disclosure, its theory has never been approved by the Supreme Court; most circuits hold that courts lack authority to direct disclosure outside the exceptions in Rule 6(e).

Judge Engelmayer rebuffed the administration’s “historical significance” claim for the most straightforward of reasons: Even allowing that there is public interest in the Epstein case, he reviewed the grand jury transcripts in camera and found that they contain nothing in the way of novel information heretofore withheld from the public. To the contrary, the two grand jury proceedings in question were one-day affairs in each of which a single FBI agent testified, providing hearsay testimony (which is permitted in federal grand jury proceedings). This testimony was tightly controlled by questions from prosecutors, accompanying a PowerPoint presentation of exhibits, intended to support the express allegations in the two indictments that the grand jury approved — both of which then became public. The details were then covered in Maxwell’s monthlong trial, with the exception of the identities of some witnesses (which the Trump DOJ conceded it would redact if the transcripts were made public — so, again, no new information).

As Engelmayer put it:

The grand juries in this case were not used for investigative purposes. They did not hear testimony from any firsthand witness to any event at issue. They did not hear testimony from any victim, eyewitness, suspect, or even a records custodian. The grand juries met instead for the quotidian purpose of returning an indictment.

Furthermore:

A member of the public familiar with the Maxwell trial record who reviewed the grand jury materials that the Government proposes to unseal would thus learn next to nothing new. The materials do not identify any person other than Epstein and Maxwell as having had sexual contact with a minor. They do not discuss or identify any client of Epstein’s or Maxwell’s. They do not reveal any heretofore unknown means or methods of Epstein’s or Maxwell’s crimes. They do not reveal new venues at which their crimes occurred. They do not reveal new sources of their wealth. They do not explore the circumstances of Epstein’s death. They do not reveal the path of the Government’s investigation.

The judge was unsparing in his recounting of the history of vows by Attorney General Pam Bondi and FBI Director Kash Patel that there would be massive disclosure of heretofore supposedly hidden Epstein files — a “commitment to transparency and lifting the veil on the disgusting actions of Jeffrey Epstein and his co-conspirators” (Bondi), ensuring that “there will be no cover-ups, no missing documents, and no stone left unturned,” and that “if records have been hidden, we will uncover them” (Patel). Engelmayer further recalled Bondi’s ballyhooed dissemination of what turned out to be a binder of stale information, and her subsequent suggestion (when the MAGA base complained) that the FBI in New York had withheld “thousands of pages of documents” from her, which she ordered to be delivered immediately to her office. (This was the setup for Bondi’s now-infamous assertion in a press interview that she had an Epstein “client list” on her desk to review — an assertion that she later claimed was misconstrued. Engelmayer omits this episode from his account, presumably because it arose outside the court proceedings.)

Early last month, notwithstanding these pronouncements, the FBI and the DOJ admitted that there is no “client list” and “no credible evidence that Epstein blackmailed prominent individuals as part of his actions.” In sum, investigators “did not uncover evidence that could predicate an investigation against uncharged third parties.”

Obviously, Engelmayer has no qualms about embarrassing the administration, but there is also a purpose in his summary: It demonstrates that while the administration has endeavored to shift the burden of concealment to the court, it is actually the Trump DOJ and the FBI that continue to withhold information. The materials that are covered by Rule 6(e) and are therefore subject to judicial review, Engelmayer shows, are very limited and unenlightening. By contrast, the Trump administration is still holding mountains of files — by its own description, “more than 300 gigabytes of data and physical evidence” — that it has unilaterally decided not to make public.

To be clear, that is almost certainly the right call. But the implication is that the grand jury litigation was a distraction. In fact, Engelmayer concludes that this is the one valid argument that might have supported disclosure (had it not been outweighed by the rationales of the secrecy mandate of Rule 6(e)). In the judge’s view, unsealing the testimony

would expose as disingenuous the Government’s public explanations for moving to unseal. A member of the public, appreciating that the Maxwell grand jury materials do not contribute anything to public knowledge, might conclude that the Government’s motion for their unsealing was aimed not at “transparency” but at diversion — aimed not at full disclosure but at the illusion of such.

The court decided not to go this route, even though Engelmayer noted that there is some Second Circuit precedent “permitting a court to order the release of grand jury testimony to correct a movant’s misleading public characterization of it.” (He pointed to a case involving the late, twice-convicted Congressman Mario Biaggi, whose grand jury testimony was released after he publicly claimed to have cooperated with investigators — whereas Biaggi had actually refused to answer a prosecutor’s questions 17 times.)

In Engelmayer’s view, his conclusion that the Trump DOJ was orchestrating a distraction was further bolstered by the slapdash nature of its motion — “suggestive of haste, rather than reflective deliberation.” The judge, a former SDNY prosecutor, took pains to point out that no SDNY prosecutor had signed off on the motion. (An unsubtle allusion to President Trump’s firing of Maurene Comey, the line SDNY prosecutor in charge of the case, who just happens to be the daughter of one of Trump’s political nemeses, former FBI Director James Comey.) Instead, the government’s three-and-a-half-page application was submitted by Deputy Attorney General Todd Blanche, who may not have known how unedifying the grand jury proceedings were. Worse, the government provided no notice to victims of Epstein and Maxwell — that was done only after Engelmayer asked about it. Further, the Trump DOJ erroneously represented to the court that a number of details in the testimony were nonpublic. As a prosecutor familiar with the case would have known, those details were the subject of public trial testimony.

Finally, Engelmayer reported that victims of Epstein and Maxwell appeared to support disclosure based on a misimpression: They had been misled by the Justice Department’s commentary into believing that the unsealing of grand jury proceedings would result in significant revelations. Beyond that, drawing on the victims’ sealed submissions to the court, the judge noted that a number of them “express alarm or dismay at other recently reported, or anticipated, Government actions regarding Maxwell.” These include the decision by Trump officials to refrain from releasing further investigative files; the suggestion that there will be no further criminal investigations in the matter; the transfer of Maxwell to a lower-security prison, which, according to one victim, “has further eroded the victims’ confidence that their safety and dignity are priorities”; the reported speculation that Maxwell might receive clemency from President Trump; and Blanche’s interviewing of Maxwell “as though she were a credible authority,” which a victim opined had “legitimized her” publicly.

The Justice Department could appeal Judge Engelmayer’s ruling, but doing so would be foolish. Legally, an appeal would be doomed: Judges have broad discretion over grand jury matters, and Engelmayer is not going to be reversed, in any event, over a ruling in which he follows Rule 6(e) to the letter and persuasively finds that the Second Circuit’s very narrow exception — not followed by most courts — does not apply. Practically, an appeal would simply call more attention to the ineptitude of administration officials first in hyping the Epstein files and then in trying to put the toothpaste back in the tube.

Of course, with the House having issued Epstein-related subpoenas to former President Bill Clinton and former Secretary of State Hillary Clinton, among other former top officials, the circus may still be in town come September, even if the current president would rather it were shut down.