Trump DOJ order on Jeffrey Epstein could create legal and ethical challenges

NBC News

3 days ago

President Donald Trump has directed Attorney General Pam Bondi to "produce any and all pertinent Grand Jury testimony" in the Jeffrey Epstein case — but it's unclear what's in that material, or whether a judge will even allow it to be released.
The Justice Department filed the motion in federal court in New York late Friday afternoon, calling on a judge to "release the associated grand jury transcripts" of cases having to do with Epstein "and lift any preexisting protective orders."
The president handed down the directive on the case Thursday night, hours after The Wall Street Journal reported that Trump sent a "bawdy" 50th birthday letter to Epstein in 2003. NBC News has not independently verified the documents, and Trump denied sending such a letter. The president filed a lawsuit on Friday against the newspaper's publisher, two of its reporters and News Corp founder Rupert Murdoch. A Dow Jones spokesperson said in a statement, 'We have full confidence in the rigor and accuracy of our reporting, and will vigorously defend against any lawsuit.'
The president in recent days has sought to brush off the growing pressure, including from some of his closest supporters, to release more information on the case. Epstein's criminal case and 2019 death have long been the subject of conspiracy theories.
"Based on the ridiculous amount of publicity given to Jeffrey Epstein, I have asked Attorney General Pam Bondi to produce any and all pertinent Grand Jury testimony, subject to Court approval. This SCAM, perpetuated by the Democrats, should end, right now!" he wrote.
Bondi responded almost immediately, writing on X that the DOJ was "ready to move the court tomorrow to unseal the grand jury transcripts."
Experts told NBC News such a move could create legal and ethical issues, given laws protecting grand jury secrecy. The Justice Department said in its filing the move is necessary given "longstanding and legitimate" public interest in the Epstein case.
The DOJ did not immediately respond to a request for comment. The White House referred NBC News to Trump's Truth Social posts.
Here's a look at what to expect next, and what — if anything —might be revealed.
What comes next?
The Justice Department filed its motion in federal court in Manhattan, where the grand jury that charged Epstein was convened. Epstein was found dead in his jail cell in 2019 while awaiting trial on sex trafficking charges. A medical examiner ruled his death a suicide.
While Trump directed the DOJ to ask to unseal "pertinent" information about the case, its filing goes a bit further, asking the judge to unseal apparently all of "the underlying grand jury transcripts in United States v. Epstein, subject to appropriate redactions of victim-related and other personal identifying information."
The filing, signed by Deputy Attorney General Todd Blanche, also Trump's former personal attorney, indicates a similar motion may be filed in Florida.
Epstein had previously been investigated in the mid-2000s by federal and state authorities in Florida, where he struck a much-scrutinized deal that allowed him to plead guilty to state solicitation charges involving a single underage victim, despite investigations into dozens of others. Federal prosecutors now say he "harmed over 1,000 victims."
Legal experts said any future hearings on the filing may be heard in closed court under seal, meaning the public would not be able to see what is specifically requested by the DOJ, at least at first.
Grand jury transcripts can include testimony from any potential witnesses and victims, as well as members of state, local or federal law enforcement who may have played an investigatory role in the case.
The material that could be released is expected to focus on Epstein and his former girlfriend, Ghislaine Maxwell, because prosecutors primarily present evidence against the individuals they are trying to indict, according to a former federal prosecutor in New York, who spoke to NBC News on the condition of anonymity. Other individuals are typically mentioned in the broader case file that includes documents produced throughout the investigation.
Maxwell, the only other person who has been charged in the probe, was convicted on sex trafficking charges in Manhattan in 2021 and sentenced to 20 years in prison. She is appealing her sentence.
Why can't the DOJ just release the transcripts?
By law, grand jury testimony is secret. Those involved in a grand jury matter generally may not disclose information or material from the grand jury, with some exceptions: Witnesses can discuss their testimony, and the government can share information with people who are working on the case or a related matter.
There are other exceptions as well, related to matters involving foreign intelligence, counterintelligence, national security and foreign affairs — none of which appear to apply in this case.
Prosecutors have one edge with the proceedings being held in New York. The 2nd U.S. Circuit Court of Appeals — the federal court that oversees appeals in New York's Southern District — has held that judges have inherent authority to release grand jury materials in special or exceptional circumstances.
Whether this situation is considered a special or exceptional circumstance is unclear. Among the factors the court said judges should consider are 'historical interest' and the passage of time, including whether people involved in the case are still alive. While Epstein is dead, Maxwell is alive and appealing her conviction to the Supreme Court.
The DOJ filing maintains that the materials should be made public anyway.
'While the Government recognizes that Maxwell's case is currently pending before the Supreme Court on a petition for a writ of certiorari, it nonetheless moves this Court for relief due to the intense public scrutiny into this matter,' the filing says.
Other circuit courts have disagreed with the 2nd Circuit's position on disclosure, and the high court has not weighed in on the issue.
Will the 'client list' finally become public?
The current uproar began after the Justice Department and FBI released a joint memo saying it had conducted an "exhaustive" review of the Epstein case. Contrary to the conspiracy theories championed by the right, the report said the politically connected financier didn't have a "client list" of associates, that no other parties were facing charges, and that his death was in fact a suicide.
The grand jury testimony is not expected to shed much, if any, light on those issues, because it would not include FBI 302s (a form filled out by FBI agents describing details of interviews with individuals involved in a case), photo or video evidence, or unredacted names of individuals not directly involved in the grand jury testimony.
It also wouldn't include flight logs of people who had flown on Epstein's plane — logs released in 2021 as part of Maxwell's trial showed Trump, former President Bill Clinto n and Health and Human Services Secretary Robert F. Kennedy Jr. were among those who traveled on the plane. All three have denied any wrongdoing in connection with Epstein and have not been charged in relation to the case. Trump denied last year that he'd ever been on Epstein's plane.
Kristy Greenberg, a legal analyst for MSNBC and a former federal prosecutor, called the Trump-Bondi move a 'red herring.'
'Trump knows SDNY prosecutors seeking to indict Epstein and Maxwell didn't ask questions about him in their grand jury presentations while he was POTUS. It's a red herring to distract from the evidence that matters: witness interview notes, videos, photos, etc.,' she wrote in a post on X.
The former New York federal prosecutor agreed that records describing the information collected by investigators — not grand jury testimony — are more likely to contain the information that some have been demanding.
"It's those case files that are likely to contain financial transactions, phone numbers and other information about friends and associates of Epstein," said the former prosecutor.
But the former prosecutor said that he believed his former colleagues would have pursued cases against any individuals if there were clear evidence that they engaged in sex trafficking or broke other federal laws.
"I would be surprised if there was anything federally prosecutable that was not charged," said the former prosecutor, who added that some forms of misconduct are not federal offenses. "There are a lot of things that are unsavory that are not federal crimes."
Former federal prosecutor Chuck Rosenberg, an NBC News analyst, warned that releasing grand jury information could lead down a slippery slope.
"Rules aside, it is fundamentally unfair to dump subject names in the public domain" because those individuals may have "done nothing wrong" and also "have no real forum to rebut accusations."
"If they have done something wrong, then they ought to be charged in a forum where they can contest the charges," he added. "If DOJ has something to say, they ought to say it in court. Otherwise, they should say nothing."
Rosenberg also issued a similar warning regarding bipartisan calls to release all of the FBI's investigative files in the case.
"It is fundamentally a bad practice to release unredacted investigative files into the public domain," he said. "In every case, investigative files contain lots of information — some vetted, some unvetted, some accurate, some inaccurate, some resolved, some unresolved."