Prosecutors and investigators who follow longstanding DOJ and FBI rules never have to walk back the things they can’t prove and should never have said.
I’d always commend Jim’s Jolt, but Monday’s is on a topic more important to me than usual, so I heartily invite everyone’s attention to it. It’s about how top-echelon Trump Justice Department officials are now forced to walk back all their hyperventilating about Jeffrey Epstein because they couldn’t back it up with evidence; yet, because they played the politicized conspiracy-theory game, they’re having trouble getting their own political base to believe their revised conclusion that there’s no there there.
This sort of thing doesn’t happen when the Justice Department and the FBI follow their own well-founded rules.
There was never credible reason to believe there was a dark Epstein story that we were not being told. When the government wants to bury something, it doesn’t bring a case. Indeed, as I detailed six years ago, Epstein was the recipient of an astonishing sweetheart deal, orchestrated by Florida state and federal prosecutors in 2007, the intent of which was to end scrutiny and maximize immunity. That’s how stuff gets buried.
In 2019, by contrast, the Justice Department in the first Trump administration, in the Southern District of New York, brought a case against Epstein. After Epstein’s suicide, far from dropping the matter, the SDNY indicated Ghislaine Maxwell, Epstein’s paramour and co-conspirator. These prosecutions entailed an immense amount of documentary discovery, and Maxwell’s case took weeks to try. That kind of discovery, coupled with the independent investigations that criminal defense lawyers do once they have access to it, makes it virtually impossible for the government to conceal crimes (assuming that there may be crimes to which the government has turned a blind eye). Once prosecutors decide to charge people, they have a powerful incentive to charge everyone who is implicated; otherwise, a good defense lawyer will figure out what’s going on and use it to the client’s advantage — accusing the government of selective prosecution, corruption, etc.
Prosecutors can’t be half in and half out — bring a case but try to conceal underlying crimes. The dispositive decision is whether to open Pandora’s Box at all by indicting. Once you open it, the judge is involved, the defense lawyers are involved, and you’ve lost your ability to keep a lid on things over the long haul.
The Justice Department in the first Trump administration looked very carefully at Epstein’s suicide. It was the subject of a lengthy DOJ inspector-general report by Michael Horowitz, who has a track record of thoroughness and of slamming government malfeasance when he finds it. After Maxwell was convicted, Judge Loretta Preska, one of the most experienced and careful jurists in the Southern District of New York, issued a ruling making a great deal of case documents public as the result of a defamation suit brought by the now-deceased Virginia Giuffre, one of Epstein’s victims. For anyone with a modicum of experience in the system — lawyers, reporters, commentators, et al. — there was just no reason to believe that bombshells were being hidden.
As Jim points out, the controversy here involves government officials (including people who are now government officials after stints as media provocateurs) who made very suggestive public statements that uncharged people might be implicated in Epstein’s crimes or in his death. Among those speaking publicly about the case has been Attorney General Pamela Bondi, who has run DOJ as if it were an adjunct of the White House press office and who said she was pushing for the release of evidence of uncharged misconduct, including a possible “client list.” Back in February, she embarrassed herself by hyping the release of supposedly earth-shattering new disclosures that turned out to be a binder of about 200 pages that revealed nothing new. She then tried to deflect attention by claiming that a “truckload of evidence” had been kept from her — although it’s hard to fathom how an experienced prosecutor could have believed the 200-page binder she put out with such fanfare was representative of a years-long investigation that had resulted in a weeks-long trial (the transcript for a single day of trial typically runs over 200 pages long).
As the DOJ and FBI now find themselves walking back this nonsense, it’s worth remembering that AG Bondi and FBI Director Kash Patel announced it as “a new era” of “commitment to transparency and lifting the veil on the disgusting actions of Jeffrey Epstein and his coconspirators.”
We should recoil at the prospect of such an era. Prosecutors and federal agents are duty bound to investigate in secret and speak publicly only when they’re prepared to back up allegations with formal charges because people who have not been charged are presumed innocent. Grand juries, by law, conduct secret proceedings because of the traditional American commitment to avoid smearing people by innuendo and suspicion — and because competent investigations require secrecy and discretion. The Justice Department and the FBI are not in the transparency business. They can’t be if they are to do the jobs they are sworn to do. They must be transparent and honest when disclosure is legally required, and mum when it is not.
Instead of a new era, perhaps the Trump II DOJ could familiarize itself with the old rules, which — at least on paper — still apply (after being updated by the Trump I DOJ):
Much of DOJ’s work involves non-public, sensitive matters. Disseminating non-public, sensitive information about DOJ matters could violate federal laws, employee non-disclosure agreements, and individual privacy rights; put a witness or law enforcement officer in danger; jeopardize an investigation or case; prejudice the rights of a defendant; or unfairly damage the reputation of a person.
DOJ personnel should presume that non-public, sensitive information obtained in connection with work is protected from disclosure, except as needed to fulfill official duties of DOJ personnel, and as allowed by court order, statutory or regulatory prescription, or case law and rules governing criminal and civil discovery. Other than as necessary to fulfill DOJ official duties, disclosure of such information to anyone, including to family members, friends, or even colleagues, is prohibited and could lead to disciplinary action. Unauthorized disclosures of sensitive personal or proprietary information could lead to criminal prosecution or administrative action.
And since they have a good deal to say about the president’s nemesis, the FBI’s former director, James Comey, they might also have a look at the Trump I DOJ’s memorandum explaining DOJ’s rationale for Comey’s firing, including:
We do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts [of the Hillary Clinton emails investigation] for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors are taught not to do.
Prosecutors who follow the rules rather than politically exploiting their privileged access to investigative information never have to walk back the things they can’t prove and should never have said.