The Main Obstacle Keeping Congress From Getting Answers on Epstein

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The coils of the Epstein snare are tightening around Donald Trump, his lackeys in the Justice Department, and his desperate defenders in Congress. The Wall Street Journal reported this week that Attorney General Pam Bondi told Trump months ago that his name is in the Epstein files. Hence, all the president’s truckling men and toadying women have been frantically devising schemes designed to convince the gullible that Trump is seeking full disclosure of all things Epstein while simultaneously ensuring that nothing of consequence will be disclosed.

Earlier this week, I explained why Attorney General Bondi’s request that federal judges release grand jury transcripts in the Jeffrey Epstein prosecutions is a none-too-clever diversionary tactic. I noted that the vast majority of information collected in a complex federal investigation is not discussed in grand jury testimony and, in any case, judges would probably deny DOJ’s disclosure requests because grand jury testimony is secret under Federal Rule of Criminal Procedure 6(e), can be disclosed only for narrowly defined reasons, and DOJ’s stated reason (“extensive public interest”) isn’t among them.

On Wednesday, Judge Robin L. Rosenberg of the Southern District of Florida denied the government’s request for release of grand jury transcripts in Epstein’s South Florida sex trafficking cases for precisely this reason. DOJ’s requests for production of grand jury transcripts from Epstein’s later New York cases remain pending. New York is a slightly more favorable venue for this gambit because the federal court of appeals covering New York has ruled that grand jury material can be released under extraordinary circumstances not specifically listed in Rule 6(e). Still, my guess is that the New York judges will either deny DOJ’s motion altogether or, at most, order very limited—and to the curious public, highly unsatisfactory—disclosure.

Previously, I also explained that Bondi could release without a court order some Epstein material not covered by grand jury restrictions, but that much non-grand-jury material is nonetheless protected by different statutory privacy constraints and internal DOJ rules and practices. In any case, Bondi has shown no disposition to release anything on her own. Indeed, her focus on grand jury materials controlled by the judiciary is plainly an effort to pass the buck and obscure the fact that she has some independent authority to disclose information.

Despite Bondi’s games and the very real restraints imposed by law, if Congress really wanted to obtain the Epstein files, it could try to bypass both legal restrictions and DOJ obstruction in one of two ways.

The first method, which I explained Monday, would be to pass a bill waiving all legal constraints on disclosure for the Epstein case only. Such a bill, if passed by both houses and signed by the president (or passed by a veto-proof majority), would become statutory law superseding all normal disclosure limits created by prior statutes and rules. Just such a bill was introduced in the House on July 15 by Republican Rep. Thomas Massie and Democratic Rep. Ro Khanna. But House Republicans have thwarted this statutorily mandated disclosure by supporting instead a nonbinding resolution that requests disclosure without legally requiring it. Even that was too much for House Speaker Mike Johnson, who on Wednesday suddenly sent the chamber home early for its August recess rather than let them vote on the nonbinding resolution.

That brings us to the second avenue. Congress has the power not only to legislate, but to investigate the conduct of executive agencies, as well as pretty much any matter on which legislation might be appropriate. Congressional investigative authority includes the power to subpoena testimony and documents.

Critically, a subpoena, unlike a bill, does not require the consent of both houses of Congress and the signature of the president. Indeed, an ordinary investigative subpoena does not require an affirmative vote by the whole of either house. A determined committee or even subcommittee majority, and in some cases a single committee chair, could force issuance of a subpoena for some or all Epstein materials held by the Justice Department.

Remarkably, on Wednesday a disgruntled knot of three Republican members (Reps. Nancy Mace, Scott Perry, and Brian Jack) of the Subcommittee on Federal Law Enforcement of the House Oversight Committee joined with subcommittee Democrats to authorize a subpoena to DOJ for the Epstein files. Under House Rule XI(2)(m)(3)(A), the subcommittee vote seems to require that the subpoena issue. However, the chair of the full committee, James Comer, would actually be the person to issue it. Which he has so far not done. And is in no evident hurry to do.

Those who have followed congressional efforts to investigate the executive in recent years will recognize that compliance with committee subpoenas is hardly guaranteed. Presidents can, and often have, objected to such requests on a host of grounds, some legally legitimate and others not. President Trump’s first term was notable for the almost complete lack of executive branch compliance with legislative requests for information, whether by subpoena or otherwise.

Moreover, in the Epstein matter, Trump’s Justice Department would have legitimate grounds for objecting to release to Congress at least some materials. For example, release of grand jury testimony even to Congress might require a court order under Rule 6(e)—although nothing would prevent Congress from subpoenaing those who testified before grand juries to testify again to Congress. Likewise, DOJ might assert executive privilege (whether justifiably or not) as to matters that would jeopardize any ongoing inquiry into the Epstein affair. It also might object to release of information identifying victims or unindicted persons whose reputations would be adversely impacted by disclosure.

More fundamentally, DOJ might maintain that any Epstein subpoena falls outside of legitimate congressional oversight authority because the purpose is not to review agency operations or inform potential legislation, but to expose the private affairs of Epstein associates or to allow Congress to act as a quasi-prosecutorial body.

Regardless of the legal validity of executive branch objections, Congress has limited means of forcing compliance. It can request that the Justice Department file criminal contempt charges against persons who defy a subpoena, but Trump’s DOJ is hardly likely to indict the attorney general. Congress can seek civil contempt remedies in the courts, but that road is tortuous, uncertain, and likely to drag on for years. Or Congress could exercise its so-called inherent contempt power, voting to hold someone in contempt and then asking the legislature’s own officers to arrest or otherwise punish the contemnor. But that hasn’t been done since the 1930s, and House Republicans are hardly likely to resurrect that moldy precedent in this case.

If the House were now controlled by Democrats, one could infallibly predict that Trump would resist—and probably successfully—any attempt to subpoena DOJ’s Epstein files. But with a Republican majority, the problem a House subpoena presents the Trump administration is not legal, but political. How could Trump, a Justice Department headed by Pam Bondi (the Epstein client list “is sitting on my desk”), and an FBI led by vocal Epstein conspiracy theorists Kash Patel and Dan Bongino possibly justify to either the MAGA faithful or Trump critics an overt, dogged, attritional campaign to keep the Epstein files secret?

This is the box (and what a delightfully ironic box it is) in which House Speaker Mike Johnson and the entire Trump-fearing Republican establishment now find themselves. The House and the Senate could try to force disclosure through legislation, or a House committee acting alone could try to force disclosure through subpoena. But Trump would certainly block either road, by vetoing a bill or stonewalling a subpoena. And that would reveal, even to the most ardently MAGA, Fox News–dependent observer, that Trump has something to hide.

Therefore, Speaker Johnson pushed the House into early recess so he and the White House can: A) figure out how to escape the procedural trap in which they are now thrashing so wildly; B) devise a diversion so spectacularly distracting that people (they hope) will just lose interest in the Epstein scandal; or C) offer some small-beer partial disclosures that (they hope) will satisfy at least the MAGA base.

Director of National Intelligence Tulsi Gabbard’s absurd accusation last Friday that President Barack Obama was head of a “treasonous conspiracy” to somehow rig the 2016 election is first among the attempted diversions. We should expect others.

The prime candidate for an acceptable source of partial disclosure is Epstein’s girlfriend and imprisoned co-defendant Ghislaine Maxwell. Maxwell is doing 20 years and desperately wants a pardon or sentence commutation. Trump controls the pardon power and wants a statement exculpating him from any criminal or really slimy involvement with Epstein.

So this week, Oversight Chair Comer, while sitting on the subcommittee’s authorization of a subpoena for all DOJ’s Epstein files, issued a subpoena for Maxwell alone. And, wonder of wonders, DOJ announced that Todd Blanche, the deputy attorney general himself, met with and interviewed Maxwell on Thursday.

The fact that the deputy AG is personally interrogating a witness, much less a defendant in a long-concluded case, is itself an astounding departure from DOJ practice. Senior DOJ leadership doesn’t handle witnesses. But Blanche’s only qualification for his present job is that he was formerly Trump’s defense attorney, a role he obviously still plays.

Therefore, we should not be in the least surprised to hear shortly of a deal between Maxwell and the government. And to hear thereafter that Maxwell will proclaim Trump as pure as the driven snow (while perhaps also dishing dirt on perennial Trump foes like Bill Clinton). Whether such a transparent sham will satisfy anyone is a different question.

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