The Epstein Files: where the law stands

Warning: in the following article there will be discussion of, and reference to victim testimonies about, sexual abuse of minors.

Over decades, criminal cases against the late financier Jeffrey Epstein resulted in charges that he operated a sex-trafficking ring preying on young women and underage girls, aged 14 to 18. Prosecutors say he was aided in recruiting and abusing these girls by Ghislaine Maxwell, his long-time associate and romantic partner, who is currently in prison.

Thousands of pages of depositions and other legal documents have been filed, and while some have been made public, there have been calls from across the partisan divide for a release of all the files. Conspiracy theories abound on the internet and in some media outlets, rife with speculation that Epstein’s suicide was staged and he was in fact murdered to prevent him naming the prominent rich, perhaps famous, men who also participated in the trafficking and abuse.

The Department of Justice (DOJ) and the FBI concluded its probe earlier in July, finding that Epstein didn’t have a client list that would connect his crimes to anyone else, including US President Donald Trump.

The history of this case is lengthy, and the efforts to reveal information that was sealed nearly two decades ago has been sought repeatedly, and unsuccessfully, over that period.

In May 2007, an assistant U.S. attorney submitted a draft indictment detailing 60 criminal counts against Epstein, along with a memo of evidence assembled with assistance from the FBI against Epstein. In July, Epstein’s attorneys met with the US Attorney’s Office for the Southern District of Florida. Then-US Attorney Alex Acosta led the negotiations (Acosta became President Trump’s Labor Secretary in 2017). The US Attorney’s Office offered to end its investigation if Epstein plead guilty to two state charges and agreed to a prison term, to register as a sexual offender, and to set up a way for his victims to obtain monetary damages.

Controversially, immunity was granted to Epstein via a non prosecution agreement (NPA), in which the federal prosecutor’s office also granted immunity to Epstein’s four co-conspirators and “any potential co-conspirators”. Prosecutors agreed not to tell Epstein’s victims about the NPA, which is filed under seal.

On 30 June 2008, Epstein plead guilty to state charges of solicitation of prostitution and of solicitation of prostitution with a minor under the age of 18, for which he was sentenced to 18 months in a minimum-security facility. He was released in 2009 and continued to settle civil lawsuits filed by victims through until 2010. Further cases occurred through to 2018, including defamation cases brought against, and by, Epstein.

However, the public and media-fuelled conspiracy theories really picked up steam in November 2018 when the Miami Herald published a series of investigative reports into Epstein and the role of then-US Attorney Acosta.

In July, 2019, federal agents arrested Epstein. He was charged in the Southern District Court of New York with one count of sex trafficking of minors and one count of conspiracy to commit sex trafficking of minors.

But the criminal investigations had begun in March 2005, when police opened a criminal investigation into Epstein in Palm Beach, Florida, following the report by the parents of a 14-year-old girl that he paid her for a massage. Police amassed further allegations from underage girls who say Epstein sexually abused them at his mansion, claiming they would be giving him “massages”. Federal prosecutors later say the abuse began as far back as 2002. The 2019 indictment lays out these allegations.

On 10 August 2019, Epstein was found dead in the Metropolitan Correctional Center in Manhattan. The New York City chief medical examiner concluded that Epstein died by suicide. On 27 August, US District Judge Richard M. Berman held a hearing on a motion to dismiss the indictment against Epstein. He told the court that they would hear “the testimony of victims here today”, and many women took that opportunity to speak, either under their true names or as “Jane Doe”.

“All the work that we did to tell the world what happened to us, it’s all being erased,” victim Danielle Bensky, now 38, told media. She had been 17 in 2004 when she was convinced by Epstein and Maxwell that they would assist in financial support for Bensky’s mother, recently diagnosed with a brain tumour.

Bensky told media that Epstein used her mother’s diagnosis as leverage to routinely sexually abuse her and threatened to withhold treatment for her mother if Bensky told anyone. He also demanded that she recruit other girls. Bensky only ceased attending Epstein’s mansions after her mother’s surgery in 2005, and in the absence of any financial support as agreed.

War on the media

Recently, Trump’s legal attacks on the news media have succeeded in multimillion dollar settlements in the President’s favour following lawsuits with CBS and America’s ABC. Paramount Global, which owns CBS, paid $US16 million ($24.3 million) over the editing choices made in a Kamala Harris interview. ABC News will pay $US15 million ($23 million) towards Trump’s presidential library to settle a lawsuit over the assertion that Trump was convicted for rape (he was convicted for sexual assault and defamation).

The latest target is Rupert Murdoch. Trump has filed in a US District Court in Miami suing the News mogul and his newspaper, The Wall Street Journal [WSJ], for $US10 billion ($15 billion) for defamation following the publication of a story detailing Trump and Epstein’s friendship. It also revealed the birthday present Ghislaine Maxwell gave to Epstein for his 50^thin 2023, a series of letters from his closest and celebrity friends. Amongst those who wrote to Epstein were former US President Bill Clinton and Trump.

Trump has claimed he didn’t write the letter, and it is a fake.

WSJ has since published another exclusive story reporting that Pam Bondi and her deputy, Todd Blanche, told the president his name was among many mentioned in files about Epstein in May this year.

The White House has denied this and labelled it another fake news story.

On July 28^th, WSJ published a story by Sarah Ellison and Scott Nover that said, “Trump’s recent lawsuit against the Murdoch-owned Wall Street Journal tests their mutually beneficial bond.”

The journalists quote legal experts who are dubious of Trump’s likely win in court.

They write: “Legal experts say [WSJ] is probably protected under established standards of defamation. To win, Trump would need to prove the newspaper acted with ‘actual malice’ — meaning the journalists either knew the story was false or had serious doubts about its truth, then published it anyway.”

The story quotes Katie Fallow, deputy litigation director at the Knight First Amendment Institute at Columbia University.

“The whole point of having the constitutional ‘actual malice’ standard is to give journalists some wiggle room to report on matters of public interest in a fast-paced news environment without fearing crippling lawsuits if they get something wrong,” she said. “But there’s no indication what they said is false.”

Fallow added, “There are First Amendment protections for journalists, but those don’t really matter if companies just see Trump’s lawsuits as a kind of pay-to-play situation, where they pay to make these lawsuits go away and curry favour with the government.”

The other Murdoch-owned media giant, Fox News, has also been avidly reporting on the Epstein case, breaking with a long-established pro-Trump attitude. It appears to have read the room when it comes to their viewership and its determination to pursue the truth of the Epstein conspiracy theories and controversies. The Fox News poll, released in late July, shows 60 per cent of Republicans said they do not think the administration has been transparent. Only 13 per cent of voters said they think the Trump administration has been open and transparent with information in its probe of Epstein.

In a blog post for his practice, US appellate lawyer Jason Ostendorf writes that the real battle is between executive privilege, congressional oversight, and the public’s right to know.

He writes, “Executive privilege is the constitutional doctrine that allows the president to withhold certain information from Congress or the courts, typically to protect national security or internal deliberations. But it’s not a force field. Courts have pierced it before—famously in United States v. Nixon, 418 U.S. 683 (1974)—and they can do it again.”

He adds, “The privilege isn’t automatic. It must be formally asserted. It must be specific. And it must survive judicial scrutiny. That’s why its absence here is telling. Trump, for now, seems to be relying on procedural stonewalling—not constitutional authority—to keep the Epstein records buried.”

He claims the next challenge will be “the moment the House issues a formal subpoena for the withheld documents—and Trump or the DOJ formally resists—that’s when privilege enters the ring. And if that happens, courts will likely be forced to decide whether the public’s right to know outweighs a president’s right to secrecy.”

Ostendorf concludes that very specific criteria must be met to break the seal on the Epstein files despite DOJ resistance.

He writes, “Courts have unsealed grand jury material in historical cases involving Watergate, police corruption, and civil rights abuses, but only when very specific criteria are met:

• The materials must be historically significant or critical to pending litigation;
• There must be no reasonable alternative to obtain the information;
• And unsealing must not compromise ongoing prosecutions or endanger witnesses.

So far, the Epstein materials haven’t cleared that bar. However, that could change—especially if Congress ties the documents to a formal legislative purpose or if a judge decides the national interest finally outweighs the institutional secrecy.”

The current argument from the White House that “all credible” information in the Epstein files will be released by Pam Bondi has not assuaged public appetite for the full, transparent documentation. There is also a significant concern that child pornography and sensitive victim information would be revealed to the detriment of victims. In the end, it is hard to see who the victor is regardless of the files being released, redacted, or under seal forever.