President Donald Trump’s call to make public a subset of grand jury records stemming from the prosecution of Jeffrey Epstein falls far short of the total release of documents his supporters have demanded.
And unlike records assembled by the Justice Department and FBI, grand jury records cannot be released without the permission of the federal court responsible for overseeing the criminal case. As a result, Trump’s demand leaves the potential disclosure of new information murky, at best, and subject to a byzantine legal analysis that could take months.
That process will play out in courts in New York and Florida, where the Justice Department moved Friday to unseal grand jury records in Epstein’s criminal sex trafficking case and his associate Ghislaine Maxwell’s criminal case for acting as a co-conspirator. And already the Justice Department is teeing itself up to redact large swaths of information from the files. DOJ top brass told the courts it would “make appropriate redactions of victim-related information and other personal identifying information prior to releasing the transcripts.” Attorney General Pam Bondi and Deputy Attorney General Todd Blanche, who submitted the requests, did not specify what “other” information the department would seek to shield.
As a result, even if Trump and Bondi succeed, it’s unclear whether the documents and transcripts will provide any new insight beyond what is already known about the case. That’s unlikely to satisfy the swell of MAGA supporters who in recent days have pressured the pair to release investigation records. Trump’s directive to Bondi to move to unseal the grand jury material — after days of stonewalling his supporters’ demands — came after a bombshell Wall Street Journal report described evidence that Trump sent a racy letter to Epstein decades ago, which the president has denied. (POLITICO has not verified the authenticity of the letter, and Trump sued The Wall Street Journal Friday afternoon.)
Here’s a look at six key questions about Trump’s push to unseal the material, what the documents are likely — and unlikely — to reveal and whether a judge might go along.
What’s in DOJ’s request to unseal the Epstein grand jury docs?
DOJ’s unsealing requests were written broadly, arguing the typical secrecy afforded to grand jury transcripts should yield to the “extensive public interest” in the federal sex trafficking investigation into Epstein that was underway when he died by suicide in 2019. The filing references the Justice Department’s recent memo concluding that “no such evidence” exists to support criminal charges against “uncharged third parties” connected to Epstein.
Referencing the explosion of rage among Trump’s supporters that followed this conclusion, Blanche noted “there has been extensive public interest in the basis for the Memorandum’s conclusions.”
“Since then, the public’s interest in the Epstein matter has remained,” Blanche deadpanned. “Given this longstanding and legitimate interest, the government now moves to unseal grand jury transcripts associated with Epstein.”
Whether the grand jury material held by the courts will shed significant light on the memo’s conclusions, however, is unclear.
What is (likely) in the grand jury docs?
Grand juries in federal criminal cases hear witness testimony and review documents provided in response to subpoenas before they determine whether prosecutors have enough evidence to charge someone with a crime. All of that material is automatically considered grand jury material, and could be among the types of records released in the Epstein and Maxwell cases. But other evidence in an investigative file falls into a gray area. If someone was interviewed by law enforcement on a voluntary basis, without a subpoena, for example, that might not be considered grand jury material.
But if that person were asked about documents that were produced as a result of a grand jury subpoena, their answers might be categorized by prosecutors as grand jury material, said Arlo Devlin-Brown, a former federal prosecutor who served as chief of the public corruption unit at the Manhattan U.S. Attorney’s office. That unit prosecuted both Epstein and Maxwell stemming from investigations that began after Devlin-Brown’s tenure.
Prosecutors “often take a very expansive protective view of what’s grand jury material to keep it protected,” Devlin-Brown said.
And in a large and sprawling case like Epstein’s and Maxwell’s, grand jury testimony is often limited to just that of a federal agent who has investigated the case and gives the grand jurors an overview of the evidence. The indictment of Epstein appears to be based largely on victim testimony, and prosecutors disclosed at the time of Epstein’s arrest that multiple victims had provided information against him. If the victim accounts were conveyed to a grand jury by an agent, those accounts could be included as grand jury material, but only as described secondhand.
Dan Stein, a former federal prosecutor who served as criminal division chief in the Manhattan U.S. Attorney’s office, said the office virtually always took the approach of using an agent, or “summary witness,” in the grand jury. So if the Justice Department sticks to Trump’s pledge to seek the release of only grand jury testimony, Stein said, that could very well be limited to an agent’s testimony.
What is (probably) not in the grand jury docs?
There is likely a wealth of evidence that isn’t considered grand jury material.
For example, in Epstein’s case, the high-profile searches of his palatial Manhattan home, private island, Palm Beach residence and other properties took place after he was indicted, meaning they may not have been conducted as part of the grand jury investigation, which comes before an indictment is handed down by the grand jury.
When agents searched Epstein’s Upper East Side mansion on the night of his arrest in 2019, the search was executed pursuant to “judicially-authorized warrants,” not grand jury warrants, prosecutors disclosed in court filings.
Those searches produced, among other materials, items found in a locked safe that included compact discs with handwritten labels, the details of which prosecutors redacted in court filings as “Young [Name] + [Name].”
Who decides whether the grand jury docs are released?
It’s likely up to a New York-based federal judge, because that’s where both the Epstein and Maxwell cases were investigated and charged. On Friday, the Justice Department filed three unsealing requests: one in the Epstein case, which was overseen by U.S. District Judge Richard Berman, a Clinton appointee; one in the Maxwell case, which was overseen by Alison Nathan, who was a district judge but now sits on the 2nd Circuit Court of Appeals; and one in the Southern District of Florida, where some of the grand jury’s work took place.
Many legal experts, however, said they thought the requests in New York would be handled by what’s known as the “Part 1” judge on duty in the district, which rotates on a schedule, and it’s unclear whether the requests could get transferred to such a judge. Until Saturday, that is U.S. District Judge Jeannette Vargas, a Biden appointee, and next week it’s scheduled to be U.S. District Judge Ronnie Abrams, an Obama appointee.
Will a judge actually unseal the grand jury docs?
The fact that the Epstein investigation was based in New York may actually affect the outcome of Trump and Bondi’s unsealing push because of the disparate ways courts handle grand jury material.
Records of grand jury investigations are some of the most closely held secrets in government and rarely yield to public interest except in extraordinary circumstances. Courts say that secrecy is necessary to protect the integrity of criminal investigations, witnesses who may provide sensitive testimony, victims who may be identified and the grand jurors themselves. There are a handful of narrow exceptions written into federal rules allowing for their release.
Courts have split, however, over whether judges have their own discretionary power to release grand jury material for reasons that aren’t on the list — such as the historical significance of the secret records. For example, the federal appeals court in Washington, D.C. has concluded that judges do not have discretion to release material outside the written rules. But in New York federal courts, where the Epstein and Maxwell grand jury investigations and prosecutions took place, the guiding precedent is looser.
Instead, judges are required to balance a slew of factors to determine whether grand jury material can be released: the historical significance of the records at issue, the amount of time that has elapsed since the investigation, whether the DOJ supports or opposes release, the specificity of the requested unsealing, whether any witnesses or victims are still alive and whether any of the material has previously been made public.
Those factors, applied to the Epstein saga, appear muddled at best. Trump has called for “pertinent” grand jury records to come out. And one of the arguments DOJ previously made against disclosures was that it could damage the purported victims of Epstein’s alleged sex trafficking conspiracy, many of whom are still alive.
In the guiding case that New York federal courts rely on, the 2nd Circuit Court of Appeals agreed that a lower-court judge — U.S. District Judge Shira Scheindlin, a Clinton appointee — had properly denied a researcher’s bid to access records of a McCarthy-era grand jury proceeding. Though the court agreed that district judges have broad discretion to order such releases, the judges pointed to Scheindlin’s concern that “the current disclosure would involve some witnesses who are still alive.”
The panel emphasized that “in some situations historical or public interest alone could justify the release of grand jury information,” but it cited the examples of grand jury investigations related to John Wilkes Booth or Aaron Burr, noting that the long-term public interest in those cases could “overwhelm” the need for secrecy.
What has DOJ previously said about the risks of releasing the Epstein files?
In 2017, the celebrity and entertainment news website Radar Online sued for the FBI’s files on its investigation into Epstein up to that point. The outlet won access to some information, but most was withheld on various grounds, primarily the then-ongoing criminal case against Maxwell.
Last year, Assistant U.S. Attorney Maurene Comey, who prosecuted both the Epstein and Maxwell cases, filed a declaration in court arguing against disclosure of the records, saying such a step would likely interfere with Maxwell’s appeal of her 2021 sex trafficking conviction.
U.S. District Judge Paul Gardephe, a George W. Bush appointee, upheld the FBI’s denial of access to the bulk of the records, based largely on Comey’s declaration.
On Wednesday, the Justice Department fired Comey, the daughter of former FBI Director James Comey, from the Manhattan U.S. Attorney’s office. She wasn’t provided with a reason for her termination.
Notably, the Justice Department’s Friday filing suggests that the unsealing should occur despite the pending appeal by Maxwell, due to “the intense public scrutiny into this matter.”