Former federal prosecutor analyzes legal questions over the DOJ's Epstein files release

Geoff Bennett:

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

It's great to have you back on the program.

Barbara McQuade, Former U.S. Attorney:

Thanks, Geoff. Glad to be here with you.

Geoff 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 DOJ actually comply with the law?

Barbara McQuade:

Well, no.

First of all, the deadline was December 19, and here we are many weeks after that deadline. But also, in light of all of these redactions, Geoff, I think there is some room to argue here that they're not in compliance in it.

Within 15 days, which should have been 15 days from December 19, the Justice Department is also required to produce a log explaining what was redacted and why. One of the things they have said they have redacted is internal memoranda and things that disclose their deliberative privileges.

But that was specifically spelled out in the statute that required production. That could be something that the Justice Department and Congress might have to litigate if the Justice Department continues to refuse to produce those things.

But I think that the enormous amount of redactions seems to go beyond the scope of what would be obvious, things like names of survivors and other things. And so I think we're going to have to see that log first before Congress can really ascertain exactly what was withheld.

Geoff Bennett:

Why have no perpetrators beyond Jeffrey Epstein and Ghislaine Maxwell been charged, despite years of investigation and the volume of information that's now public?

Barbara McQuade:

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

But I think what the public is seeing here is, there is a difference between things that are wrong, morally reprehensible, shady, even awful. But to prove a crime, you would have to show that someone engaged in actual sex trafficking. That means transporting someone across state lines who is underage for the purpose of engaging in sex acts or, if they are not a minor, doing so through threats or coercion.

That requires a level of intent, knowledge, and the actions of doing these things. And I don't know that we have seen any evidence that that was done. Certainly, just associated 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 those redaction bars, but it would not surprise me if the Justice Department simply did not have sufficient evidence to prove some of these cases.

Geoff Bennett:

And that might address a question I have seen a lot online since Friday's release, which is, why did the Justice Department, under multiple presidential administrations, to include the Biden administration under Merrick Garland, why did they not pursue broader prosecutions tied to Epstein's network?

Barbara McQuade:

Yes, I think it's the same.

So, certainly, Jeffrey Epstein was charged before he committed suicide, and Ghislaine Maxwell was charged and convicted. I think her trial occurred in 2021. But just because -- we had a term we used when I was working as a prosecutor, which is awful, but lawful.

Sometimes, people engage in really hideous conduct. You investigate, but you are just not able to prove the elements of an offense beyond a reasonable doubt. And so certainly there is some shady information here going on, but it is actually one of the reasons that the Justice Department typically does not disclose records unless there is an indictment.

And that is to protect people's reputations when there really is just sort of this sort of slimy, kind of awful conduct that doesn't amount to a crime. So we're seeing all these disclosures about these wealthy and powerful men and their affiliations with Jeffrey Epstein.

Certainly, perhaps they showed poor judgment. They may even have attended parties and gone to his island and other kinds of things. But if they have not engaged in the crime of sex trafficking, it's really sort of inappropriate. Typically, the Justice Department protects people like that from disclosure to protect reputations when they cannot prove a criminal case.

Geoff Bennett:

We have also seen some survivors say that their identifying information was released accidentally. I would imagine, in these documents that they weren't properly redacted.

What obligation does the DOJ have to survivors in releases like this? And what corrective steps, if any, could be taken at this point to correct the wrong?

Barbara McQuade:

Well, the statute itself said that they should not produce, they should withhold and protect from production the names and other identifying information about survivors, which is par for the course.

It is typical, when the prosecution produces even discovery to a defendant, to redact those names and provide only that which is necessary to share with them for a fair trial. And so, in some instances, it strikes me as sloppy.

Now, I know they had millions of documents they had to review in a very short period of time, but that's the law. You need to make those your priorities. Maybe there's some things you can't do that month. Maybe there's some immigrants, Geoff, that can't be arrested that month because you need prosecutors to be reviewing the documents, in compliance with the law.

What can be done about it? I suppose there could be civil lawsuits to the extent that survivors want to file a lawsuit to suggest that they have been defamed in some way by the production of their names, in violation of this federal statute. I think they could have some civil remedies available.

Geoff Bennett:

I also want to get you to weigh in on another important matter. And that's President Trump today suggesting that Republicans should, in his words, nationalize the voting process.

And he argued it's necessary to prevent what he calls crooked Democrat-led states 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 vote illegally. And the -- amazing that the Republicans aren't tougher on it. The Republicans should say, we want to take over. We should take over the voting in at least many, 15 places. The Republicans ought to nationalize the voting.

Geoff Bennett:

When the president says "these people," he's talking about undocumented immigrants.

The Brennan Center for Justice has said time and time again that this is a lie. It's a conspiracy theory. There is no widespread voting by noncitizens. But from a constitutional standpoint, what would it even mean to nationalize elections? And does the federal government have the authority to do that when elections are the authority of state governments?

Barbara McQuade:

No, the Constitution says that it is the states that set the time, place and manner for elections. And that has consistently been held to mean that we have not one national election. We have 50 elections throughout our country on Election Day.

And there's good reason for that. One is state sovereignty, but another is, that kind of decentralized system is what protects us against some sort of widespread fraud that attacks our nation or the collection of one database of all voting records.

But in terms of administering the elections, that is all done at the state level by the Constitution. So the only way to nationalize elections would be through a constitutional amendment.

Geoff Bennett:

Barbara McQuade, always a pleasure to speak with you. Thank you.

Barbara McQuade:

Thank you, Geoff.