Every day seems to bring new reports of financiers, academics, politicians and royalty (among others) who cozied up to Jeffrey Epstein, a convicted sex offender whose predation took a horrendous toll on innocent lives. With accountability for people in power in short supply, it can be hard to see a downside in the huge dump of documents relating to Mr. Epstein and his various associates.
But we should recognize the release of millions of pages of the Epstein files as both a sign of institutional failure and a cause for concern. If our justice system were working properly, the public would never have such access.
In the not-too-distant past, most people probably would have at least grudgingly accepted a regime in which prosecutors and law-enforcement agents sorted through materials from a sprawling investigation and made public only those portions needed to properly handle a case. The additional information that might interest us, and perhaps even help improve society, would remain secret. Federal prosecutors could generally be trusted to focus on their narrow criminal enforcement mission and to not abuse the tools given them for that limited purpose. No longer.
Calls for the Epstein files release predate the Trump administration. But they are now online and searchable because too many Americans didn’t trust the Justice Department’s leadership with control of them. In the past, departmental leaders could limit suspicions about their motives by conspicuously leaving a matter such as this to career subordinates, rather than political appointees. Seen by so many as having fired or driven out prosecutors and agents who refused to become tools of President Trump’s will, Attorney General Pam Bondi lacked credibility. She couldn’t get away with asking the public to rely on the apolitical and independent judgment of those who remained. The eventual result was the Epstein Files Transparency Act.
The release of the files is also cause for concern because so much of the raw investigative material in them — untold layers of hearsay, unverified accusations and vague circumstantial connections — ought not be released for the public to pick over.
We don’t know the degree to which the Justice Department has appropriately or inappropriately withheld or redacted documents. We do know that any effort to protect victims was woefully inadequate, as explicit photos and identifying information of many women, and possibly girls, have been found in the files. The government’s obligation not to revictimize people ought to be one of its highest priorities. Here, it failed.
We give federal prosecutors and agents a broad range of information-gathering tools that private parties and even to most government agencies aren’t allowed to use. At the heart of criminal enforcement authority is the power to invade privacy. Legally available tools include search warrants, wiretaps, grand jury subpoenas and administrative subpoenas. That is how criminal investigators access our emails, our private conversations, our phone, bank and medical records. In addition, we allow prosecutors and agents to use the threat of prosecution to gain the cooperation of witnesses.
These coercive investigative tools can and have been misused, as when prosecutors and F.B.I. agents illegally rummaged through my emails and computer files in an effort to come up with a case against James Comey, the former F.B.I. director. Cogent arguments have been made for more rigorous legal restriction of these tools and the government’s use of information obtained with them. But so long as we think federal criminal laws are worth enforcing, we need to give federal enforcers a way to get information about criminal activity that, by its very nature, is closely held, and to pierce veils of privacy that normally shield our everyday activities from prying eyes or ears.
The tools we give the government are justified not only by the importance of the criminal enforcement mission but by the care and professional judgment prosecutors and agents are required to exercise with the information they obtain with those tools. Government secrecy may conceal misconduct or atrocious judgment. We have yet to understand the decision by U.S. Attorney Alex Acosta, almost two decades ago, not to charge Mr. Epstein. (Mr. Epstein was ultimately convicted in state court in 2008, after taking a plea deal.) Still, prosecutors’ use of the materials they collect is ordinarily bounded by their mission — to charge individuals (or not to charge them), to satisfy disclosure obligations after a case is brought and, if possible, to convince a jury or to obtain a guilty plea.
When materials collected in a criminal investigation get released in bulk for public consumption, the justification for the coercive and privacy-invading tools we give investigators gets a lot weaker. Institutions claiming to protect user or customer privacy might be more likely to resist valid uses of these tools. Witnesses who would otherwise speak to investigators about sensitive matters might start to rethink whether they want to provide grist for internet searches.
We have to reckon with what happens when a huge investigative haul — with its swirling mix of gossip, casual association and possible criminal misconduct — is opened up for public viewing. The justice system should never be the only means of holding people accountable. The power of shame can be a good thing, and some reputations deserve to be tarnished. But informal accountability processes can easily slide into misuse of unfiltered source material.
At a time when the Justice Department seems intent on filling the criminal docket with baseless prosecutions of its perceived enemies, many might not mourn a spectacle that highlights the lack of public confidence in the department. Or one that appears to weaken the justification for extraordinary prosecutorial powers generally. But we need to think about a future in which real crimes fill the docket, when coercive information-gathering tools are needed to pursue them. Those of us who want to preserve those tools and the justification for them ought to regret the dump of the Epstein files, even as we rummage through them ourselves.
Daniel Richman is a professor of law at Columbia University and a former prosecutor in the U.S. Attorney’s Office for the Southern District of New York. He is writing a book on early federal criminal enforcement.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow the New York Times Opinion section on Facebook, Instagram, TikTok, Bluesky, WhatsApp and Threads.
The post The Epstein Files Should Never Have Been Released appeared first on New York Times.
