Lawfare Daily: The Epstein Files and the Politicization of the Justice Department

[Intro]

Michael Feinberg: This is really quite out of the ordinary for how DOJ is supposed to look at closed investigations and/or reopen ones where new information may have come to light.

Anna Bower: It's the Lawfare Podcast. I'm Senior Editor Anna Bower, joined by Public Service Fellow Mike Feinberg and Senior Editor Eric Columbus.

Eric Columbus: I would say it certainly seems like an escalation even beyond what they, the very odd prosecutions of Comey and James.

And the reason I say that is that, in this case, with regard to Epstein, their July statement said literally, I'm quoting here, “we did not uncover evidence that could predicate an investigation against uncharged third parties.”

[Main episode]

Anna Bower: Today we're discussing the Justice Department's handling of the Jeffrey Epstein Files and Congress's oversight efforts to secure the release of these materials.

The Epstein Files saga is kind of the never-ending story of the second Trump administration, which is really saying something because in this media environment, it feels like nothing ever really seems to stick. But before we get to the latest in the Epstein Files saga, I want to start by focusing on how the Justice Department has handled the matter, because I think that it helps situate some of the more recent events involving congressional oversight.

Mike, let's start with you. Think back to the weeks following Trump's second inauguration. What was the Justice Department's initial action regarding the Epstein Files and what precipitated that action?

Michael Feinberg: So, it's a little funny that you referenced this as being the one story that's really sticking throughout this administration, because that's very much the fault of the administration itself.

What we saw throughout the campaign was Trump, his proxies and his supporters all essentially arguing that if he came into office, there would be a massive flood of sunshine thrown on the Epstein investigation, in a way that would bring transparency to what occurred by Epstein's behavior, the subsequent investigation, the prosecution, which was cut short by his suicide And it would be done in a manner that would bring closure to the victims.

So throughout the campaign, you had a number of individuals who would later be appointed to high ranking positions in the Department of Justice and the FBI, namely Pam Bondi and Kash Patel, talking about how important it was to open the files up to the public.

So pretty closely upon the heels of the inauguration, the FBI was ordered––and this is all a matter of public record––the FBI was ordered to do a really thorough review of the entire file. Now it has not really become public what that review consisted of, or what specific items of information the reviewing agents, analysts, and support staff were looking for.

But we know that it was rushed, in the sense that they were given firm deadlines and told to essentially work 24 hours around the clock, and that it had encompassed at least the Bureau's New York Field office and it also encompassed some FBI offsite headquarters entities in various regions of the country.

And you know, once that was done, there was this big sort of performative act where the Justice Department created these binders, very thick, like four- or five-inch binders that were then presented to a lot of MAGA-adjacent and far right influencers at a sort of informal ceremony that was nonetheless amply photographed and videotaped at the White House, with them, I believe, if memory serves, walking out into the Rose Garden patio holding these binders up high, saying that the public would finally know what was going on.

And more disclosures were promised, but those more disclosures never really came. And when the mainstream media, which had been tracking the Epstein saga largely as a sort of conventional criminal investigation for its lifetime got a hold of what was in the binders, everybody realized there wasn't actually anything new or revelatory in there.

Anna Bower: Yeah. So, all right, so let's then fast forward to this announcement regarding the review that you mentioned.

That comes over the summer in July. At that point, the Justice Department released this two-page memo in which it announced a number of things related to the exhaustive review that it did of the Epstein Files. Among other things, it found that there was no Epstein client list, that there's no credible evidence that Epstein blackmailed prominent individuals, and that the Department did not uncover evidence that could predicate an investigation against additional third parties.

You know, I'm curious exactly how uncharacteristic is it to announce these sorts of findings regarding a review publicly? And what else stood out to you, other than the things that you just mentioned, that might be unusual or uncharacteristic about the circumstances surrounding this review and this announcement?

Michael Feinberg: Okay, there's actually quite a lot to unpack there, because very little of what has occurred with the Epstein matter since the inauguration has been even in the same time zone as normal. So rather than give an overarching narrative, I'm just going to sort of raise a couple points that people need to understand in order to recognize how beyond the pale of normal DOJ and FBI processes this has been.

The first is you mentioned, correctly so, that since the review we've been discussing ended, there have been statements that there is no master client list and there is no need to investigate anybody new. Now, that should not be newsworthy, because we would generally hope that when a thorough investigation is done, by the time it's closed––if it goes to trial, by the time it's adjudicated––the public is aware of pretty much, not everybody who's been looked at in the investigation, but they have some sense of certainty that the people who deserve to be brought to justice probably were. That's why the investigation is ultimately closed and the subject's prosecuted.

The problem we have in this situation is that, not that long before the announcement that the review was complete and there was nothing which needed to be followed up on, you know, before that occurred, you had both, you had Pam Bondi saying that she had the client list. And you had Kash Patel saying he was certain that the FBI was in possession of the client list.

So you have the director of the FBI and the Attorney General of the United States, arguably the two most important people for criminal investigations and prosecutions in the country, first saying, there is this plethora of information that the public needs to know about, that the government is hiding. Then, in a matter of months, you have them saying, there is no further information that is being hidden from the public. Everything has been brought to light.

Now, the problem is, the campaign and the administration's proxies for really years now, have been saying that there's something there that people need to know about. What appears to happen is intimations in the media, on all sides of the political aisle, that one of the individuals whose name might be in the files is the currently serving president.

So by ginning this up for the public, saying that there is going to be an exhaustive review, and then essentially saying that there's nothing to see here, folks, they make it look suspiciously like they're doing so for political benefit of the individual who appointed them.

And we'll get into this in a few minutes, but this is like a really good reason for why you don't want to handle closed criminal investigations in a haphazard fashion. And that's a good lead-in to the second thing that was a little abnormal, which is that there is a mechanism for reviewing a closed investigation.

It happens quite frequently, you know, from the perspective of somebody who was in the FBI and loves that institution, it happens with alarming frequency, and that is an Office of Inspector General review of the matter. It is not out of the ordinary at all for DOJ OIG, when there is a controversial FBI case or initiative to essentially investigate the investigators and look at what was done in the criminal investigation.

But that's not what Bondi and Patel chose to do. They instead chose to do this weird sort of in-house hybrid review-slash-reopening of the investigation, just to sort of poke around and see what they could find.

This is pretty abnormal. You know, in my career, which spanned a little bit over a decade and a half, I only saw one case where the FBI publicly announced it was reopening something in a fashion that caused a real political firestorm. And that's of course when they were investigating Anthony Weiner for various corruption and other types of acts, they discovered a bunch of potentially relevant emails to the then-closed Hillary Clinton email investigation.

We all remember how that announcement and reopening went for the FBI. So, it's a little curious that people who have made such a career out of criticizing Jim Comey would make the same mistake he did.

So this is really quite out of the ordinary for how DOJ is supposed to look at closed investigations and or reopen ones where new information may have come to light.

Anna Bower: Yeah and I guess too, like one of the things that I am curious about that often seems to be missing from this conversation is some context surrounding like what the potential universe of actual files there are, that are being called for for release.

Because, you know, it strikes me and Ben Wittes wrote for Lawfare over the summer about this, about the fact that, you know, people are calling for a bunch of files to be released in relation to the Epstein matter, but many of those things are things that, by matter of law, can't be disclosed.

We've seen this in relation to efforts by the Justice Department to try to get some of these grand jury materials released, for example. And then there's other things, you know, that involve victims, you know, things that just simply cannot be released.

Can you contextualize that for us a little bit? Like what is the universe of things that, based on the public reporting we know are potentially in these files? And what reason would the Justice Department or the FBI have for, you know, not releasing those things that don't relate to questions surrounding the potential that President Trump could be named in them?

Michael Feinberg: Yeah, so it's a pretty common misconception among the public that the entirety of an investigative file––within the criminal realm, we’ll put national security in a different bracket––there's a misconception that criminal investigative files are all forbidden from being released because of, you know, the grand jury rule 6€.

And that's just not the case. A case file is going to contain a lot of different things, and not all of them are going to implicate the grand jury. You know, it's important to remember before you even open a grand jury, you've got to have a certain level of predication that justifies your investigation.

And to get that predication––because there's different levels of investigations, there's preliminaries, there's full, there's assessments. You know, there's going to be some documents and interviews that have been memorialized that occurred before the grand jury was ever even convened.

And you're going to have investigative materials that you get outside of the grand jury. You're going to do witness interviews there. You're probably going to get some documentary evidence that was not presented to the grand jury.

There's going to be a lot there that is not implicated by 6(e). But there's this sort of mesh network of other DOJ and FBI policies that prevent other material from being released.

And, you know, one of the big ones is are there minor victims? That's going to impose a certain level of restrictions. There's going to be another set of restrictions for victims in general. There's going to be the DOJ policy, not to publicly identify people who are not indicted co-conspirators. And then there's just the general public policy aversion to releasing information about people that is unfounded, or could not be corroborated, in a way that's going to materially destroy their reputations.

So, I have never seen the Epstein files. The overwhelming majority of Americans never have. We have no idea what papers, what recordings, what evidence is going to be in the files that is exempt from those various policies prohibiting their release.

There may be a lot. Or the files that can be released may be released, and we're essentially dealing with a lot of administrative paperwork that doesn't address the substance of the case.

Anna Bower: Yeah. And so to that end, I mean, you, we've kind of touched on this a little bit, but when you have a, you know, a closed investigation it's not going to continue any further, ou have some things that may be exempt by matter of law or aren't eligible for release, but you might have some evidence or some memos that potentially are publicly releasable.

How is it that some of those materials typically come to light? Like, can you, can people get them through FOIA? Can you speak a little bit about that?

Because I think that it helps set up some of the unusualness of this in respect to how it has been handled here versus how maybe in a typical case it would be.

Michael Feinberg: So I want to differentiate between evidence and other materials because evidence within the context of DOJ and the FBI, it's actually a term of art.

We're talking about things that are actually gonna be offered up to a jury to prove the government's case, and there's pretty strict policies for what has to be done with those things. There are certain items––and it's a really hodgepodge odd potpourri of things that the government does have to hold onto, but the overwhelming majority of evidence at the end of the case gets either returned to the person from whom it was confiscated or it gets destroyed.

Now, the destruction, look, the government's a bureaucracy. It takes some time to actually get that done. It's not like you close a case and then they bring out the paper shredders or the incinerator.

You know, there's a whole administrative process you have to go through to destroy evidence. But the government doesn't hold on to the overwhelming majority of evidence in perpetuity.

Now, given that, you know, Epstein killed himself in jail, which meant there was an open inquiry of some sort, and that there are probably a lot of outstanding FOIA requests, and that we have some pretty sensitive categories of victims, I suspect not a lot, if anything, has been destroyed that was collected during the Epstein investigation. And I just don't know what was collected from people to know whether it's been returned.

But in answer to the second part of your question, yeah, criminal investigations, once they're closed, can generally be FOIA’ed.

They're going to be heavily redacted. Things like victims' names, unindicted co-conspirators, things that relate to sensitive sources and methods––there's a whole bunch of carveouts, so you're not going to get a clean document. You're going to get a document with a lot of black marker taken to it.

But that's something anybody can FOIA. And what has traditionally been the case, at least since the advent of the information age, has been that the FBI, when there is a FOIA request, particularly for a matter of great public interest or serious controversy, you know, will not only give the result of the FOIA request to the person who requested it, but actually upload it to a website they maintain called the FOIA Vault and make it available for the entire world to see.

I do not anticipate that happening much under this administration unless the materials in question prove embarrassing to political rivals.

Anna Bower: Eric, I want to come to you because this kind of helps bring us up to where we are now with some of these more recent events. Congress is now involved in all of this.

How exactly did we get to that point?

Eric Columbus: That's a great question. Before we get to that, I just want to kind of add a little bit more to the FOIA discussion. I mean, I just want to note that typically you cannot get information about people who were not charged, who you think may have been involved and the government should have charged.

Because these people have substantial privacy interests. They're basically protected by exceptions and through FOIA disclosures. And those have been upheld by courts. And the idea is that basically DOJ, the FBI do their investigation and they find who they think are people who should be brought to justice.

And then everyone else, even if their conduct has been unsavory, you know, generally they get to go about their lives without further disclosure. Obviously there are leaks many, often times along the way, but the official stance is that the DOJ charges who it charges and doesn't talk that much about anyone else.

Anna Bower: Yeah, that's a great point. And I think, again, that brings us to kind of, you know, the fact that there's a difference between what an individual can get through FOIA versus now we're seeing a bunch of this information that's coming out through Congress.

So again, Eric, can you bring us up to speed on exactly how that happens? And contextualize it too for us: What's the typical procedure with oversight and release of information in these types of situations?

Eric Columbus: Yeah. So typically, I mean, Congress often has interests, obviously in what DOJ has done in specific cases. And that butts up against DOJ’s interest in not disclosing information.

And DOJ has characterized that as an executive privilege interest and quite often and all, sometimes there's an accommodation is made in that DOJ or FBI will come and brief members of Congress of relevant committees on certain cases and how they resolved.

They'll do it in a closed-door setting. They will not, kind of prepare memos for Congress to take with them. They will, you know, probably feed the Beast, if you will, and give enough information for Congress to feel that they've been listened to and that DOJ has done its job, but they will not make any official disclosures. And they'll try to keep things as little as they can get away with.

Congress gets involved here in July, shortly after DOJ and FBI put out that memo. That memo was put out on July 7^th. And one of the unusual things about that memo is that it was not signed by anyone. It just, there's not even a date on it. I had to look up when it was when it was issued by when there were news stories on it.

And it just says DOJ-FBI, then a two-page memo. And, you know, the memo itself is not really that unusual. It's just that––it's rather, I should say that the positions it takes are not that unusual. It's just that it contradicts everything that DOJ and FBI had been saying in the previous six months and stuff that they'd been saying during the campaign.

But the week after that, Ro Khanna, a democrat from California, and Thomas Massie, a Republican from Kentucky, put up a bill that would basically require DOJ to disclose basically everything that they have related to Epstein, with some exceptions. It says that the attorney general can withhold things for, basically for privacy reasons.

Things that, that constitute child sexual abuse materials, anything showing someone's physical abuse or injury. And any classified materials, though I don't think there would be any there, I suppose theoretically there could be something there and something that we'll come back to later. And anything that would jeopardize an active federal investigation or ongoing prosecution, providing that such withholding is narrowly tailored and temporary.

Now, interestingly, one thing that's not in here is grand jury material. And the bar on disclosing grand jury material, rule 6(e), was created by Congress.

And what Congress forbids, Congress can allow. And this legislation makes no reference to withholding anything that was protected under rule 6(e). So I assume that it would require the disclosure or anything that fits in that category.

So that bill is introduced in July. It's pretty clear that the speaker has no intention of moving it. So then they start what's called a discharge petition, which is a process where if you get 218 signatures––that's a majority of the House––on a petition, you can force the bill to come to the floor of the House.

And it is very rarely deployed with success, in part because it’s obviously a tool used by the minority. Because if the majority wanted a bill to reach the floor, it usually would reach the floor because they would be on the same page as the speaker.

It's something that's deployed by the minority and needs to get votes, signatures––some of them from the majority––and it is often either an insurmountable hurdle just because people don't, don't agree with it or because is viewed as, as really double-crossing the speaker to put your name on a petition like that if you're a member of the speaker's party.

And in, in this case it got to, there were a few Republicans who signed on. Massie, Lauren Boebert, Nancy Mace, Marjorie Taylor-Greene, and then it was sitting at 217 signatures.

And then a there's a special election in Arizona to fill a vacancy, and Adelita Grijalva, I believe, is the name of the woman who won, a Democrat who pledged to sign the petition, discharge petition, as every other Democrat had, in the House. And Speaker Johnson said he wasn't going to seat her because the Congress was out, due to the shutdown.

And this was inconsistent with how he had treated previous vacancies that were resolved during a time when Congress was not in session. And that is now, of course, resolved. And because the House is back in session and she's signed the petition. She was rather, she was sworn in, then she signed the petitio. And the speaker's going to bring it to a vote, I believe he said it would be sometime this week.

Now, of course, we have, you know, how––the Schoolhouse Rock, how a bill becomes a law. We have two houses of Congress and a president, so after the, it comes, after it, it will pass the House. And it's expected that a lot more Republicans who did not sign the petition will actually wind up voting for the bill, perhaps because they don't want to have it used against them in campaign ads next year that they voted not to disclose files relating to notorious pedophile Jeffrey Epstein.

So, it will pass the House, then it goes to the Senate, where it's––John Thune has not said what he's going to do. In theory, any senator could bring it to the floor, but then there's the still kind of questions of whether other Republicans would basically cross John Thune and vote for if he didn't want them to.

Now obviously there's kind of a, kind of like a cause-and-effect combination here. If there were a massive outcry of Republican senators to, to pass it and who knows, that might happen, then Thune would probably put it on the floor and not stand in the way. So it's unclear what will happen there.

A further complication is that President Trump, who's been fighting this tooth and nail, and even called Lauren Bobert into the situation room for a meeting to try to get her to take her name off of the Epstein petition––I think he was not in that meeting, but reportedly, Pam Bondi, Kash Patel, and Todd Blanche were, he last night did an about-face and told the House to vote for it.

And it's not entirely clear why he did that. I think we can safely assume that he is not going to allow the release of any materials that make him look bad personally, but maybe he's hoping that things will get bottled up in, in the house, rather in the Senate. Or he may be thinking that Pam Bondi will find a way to not release such materials.

Now this gets to––I don't think we've mentioned this yet, what Pam Bondi did, I think last week, I guess it was––the days blend together, but I believe it was then when she announced that in response to, so Trump posted on Truth Social at some point in last week, that asking or slash telling Pam Bondi to open up an investigation into some people who's been named a lot in the Epstein Files, Larry Summers, Bill Clinton––although Clinton was actually not mentioned that much. And for some reason JPMorgan Chase.

And sorry, to clarify, when I say the Epstein Files, I'm referring, in that last thing I said, to files that were, that the House Oversight Committee obtained from Epstein's estate.

And this was just last week, it was like 20,000 pages of documents. And we don't know to what extent that overlaps with DOJ’s files. I'm sure there is heavy overlap, but we don't know to what extent it is, at least in the, in terms of emails, to what extent it is complete. So Trump then posts that and demanding that Bondi investigate.

And Bondi doesn't take more than a few hours to say yes, and she says she's opening an investigation. She's assigning it to the U.S. attorney for the Southern District of New York, Jay Clayton, perhaps because it was his office that investigated and began the prosecution of Epstein back in 2018, 2019, during the first Trump term.

So that, you know, kind of brings us up to date. And the, this gets back now to the proviso in the legislation that says that the attorney general can exempt disclosure of any materials that would jeopardize an active federal investigation or ongoing prosecution, providing that such withholding is narrowly tailored or temporary.

So now you would think that language is not designed to exempt Donald Trump if he's not the one being investigated. But Pam Bondi could try to find a way to, with some jiggery pokery, try to use that to prevent the disclosure of materials relating to Trump.

And then that brings us, I, I'll stop talking for now, but there are other issues then of what, if anything, Congress can do if DOJ decides not to give them what they want.

Anna Bower: Yeah. Okay, so if I'm understanding you correctly, you know, one thing that you might think about Trump's kind of sudden about-face is maybe that, you know, all of a sudden there's this active investigation that's been initiated.

And one of the exemptions in this legislation is related to active investigations. And so there might be a way in which Trump throwing his support behind all of this actually has like less significance than you might think, because there might be an expectation that DOJ could still withhold a bunch of this material under that active investigation exemption, if this legislation were to go through.

Am I un, am I reading between the lines correctly about, like, kind of what the speculation is surrounding this about-face, or like what do both of you make of it?

I'm just curious, you know, and obviously. We're speculating here, but what seems to be behind Trump suddenly saying oh, yeah, I'm okay with this.

Michael Feinberg: Look, I'm a big fan of wielding Occam's razor whenever humanly possible. And I think the simplest explanation here is that the about face largely comes about as a result of knowing that Pam Bondi, under Trump's own orders, is now going to be launching a sort of Epstein spinoff investigation.

And I think it's important to note, guys, jump in if I'm wrong here, I try not to avidly follow anything on Truth Social, but I think the direction to Bondi that was given specified investigations against Democrats. Like that was the actual wording.

So like, you know, DOJ seems to really be building a cottage industry in defending against vindictive and selective prosecutions. I strongly suspect that practice area is going to grow for them if we get any indictments or complaints out of these orders. But. You know, I think this is pretty transparently an attempt to set up a series of ongoing investigations, which will not redound against any Republican supporters or members, and will allow Bondi to withhold the overwhelming majority of the larger Epstein file.

But something else also happened over the weekend, which was on the Sunday morning talk shows, Don Bacon, who is not exactly known for being a firebrand opposition to President Trump and his priorities, said that it was time the files get released.

So this could be the administration realizing that Bondi's gonna protect them through the open investigation. It could also be the administration realizing that it's losing its own base of support in trying to withhold these files, and coming out simply so they could say they didn't stand in the way. And it could also be a combination of those things.

But I don't think we are on a glide path, either way, to these files actually seeing the light of day anytime soon.

Eric Columbus: I agree with everything Mike said. I mean, I think that if they, I mean, it's interesting that if they thought this was some brilliant get out of jail free card, they didn't, it took them a very long time to play it. And I think it may be because they felt that they had other ways to get out of it.

And also that it's not very logical. And it may somehow work, but only by Pam Bondi doing things that don't make sense. It gives her––if it gives her a fig leaf, it's an extremely tiny one, because the legislation just, you know, just to repeat myself requires that withholding be narrowly tailored, if you're withholding stuff that might jeopardize an active federal investigation.

And obvious––just to kind of state the obvious, if you are investigating only Democrats or the specific people who are named here, then you can release stuff relating to Donald Trump. And it's also, if push comes to shove and there are reasons to suspect it might not––a court might say, look, it is, this is just 'cause you say you're doing an investigation doesn't mean that you actually are.

Because you've insisted up and down that there is no reason to investigate anyone further. And you've done so and you've made these comments at times when you basically knew that you would get into hot water for saying it. And it's, therefore, it seems rather clear that you actually believed that at the time.

And unless you can present any evidence to as to why you've changed your mind about this, and the president demanding it is not a great reason, then it's hard for us to believe you here.

Michael Feinberg: But Eric, if I could push back against that gently, the only time a court would really have the opportunity, though, to make that argument would be after new charges were filed against somebody at the stage where they're reviewing a motion for vindictive or selective prosecution.

I'm less concerned with separation of powers arguments than a lot of other people I know, particularly of conservative leanings, but I can't conceive of a world where a court would jump in before charges have been filed, and tell DOJ that it needs to make public elements of an ongoing investigation or do some sort of injunctive relief to stop that investigation or order them to expand it.

Like I just, I think if Bondi makes the argument there are ongoing investigations, it is extremely unlikely that a court is going to step in and put itself between Bondi's assertions and Congress's desire to see these things released.

Eric Columbus: I was contemplating it as a possib––as, if there were litigation that Congress itself might bring in order to enforce the statute, either directly or possibly via subpoenas issued pursuant to the statute. And that has its own challenges, but in that context, I could see a judge looking at what DOJ has said and done, and then, you know, weighing it again, you know, comparing to the statute and saying, how is this, are you investigating Trump?

Michael Feinberg: I think that is within the realm of possibility at maybe the district court level. I can see the appellate court level and certainly the Supreme Court bending over backwards and contorting themselves in previously physically impossible manners to avoid having to reach the merits.

And I realize we're sort of prognosticating here, like this is just spitballing what might happen in the future, but I'm at least unaware of any precedents that would allow a court to intervene in the manner we're talking about.

Eric Columbus: Well, that gets to, I think, another interesting possibility, which is that the administration could say that this legislation is unconstitutional. And say that it, it trenches on prerogatives of the executive branch to keep its information private with regard to law enforcement investigations.

And I don't think there's been, you know, ever any case law on this. I mean, you never say never, but these are among the many things that the administration of both parties have said for many decades about executive privilege that have never been tested in court.

And I, it's certainly possible that courts that are trying to edge us back to norms that existed before Trump might be somewhat sympathetic to that argument.

Michael Feinberg: Well, and also this is where Congress's own behavioral history may come back to bite them.

There are a number of cases, of eventual criminal cases, where there were precursor congressional investigations. And I know, at least in my experience––and I know you have a slightly different one from your last role––but when I was still in the FBI, Congress was generally incredibly loath to give us the results of any of their investigations.

If it wasn't done at a public hearing and they had additional evidence that had been gathered, we could move heaven and earth and they would not give that up to the executive branch for separation of powers reasons.

So, this is going to be like, again––I just, I really don't see a court coming down and adjudicating this in any meaningful manner that resolves the conundrum.

Eric Columbus: Yeah. I mean, you may very well be right.

Anna Bower: So, hearing you guys talk about this, once again, brings me back to my own frustration and confusion surrounding, you know, what universe of documents we're even talking about that DOJ has versus what Congress has.

This new investigation that is supposedly being opened, led by Jay Clayton in the Southern District of New York, was predicated on the new developments regarding the release of this tranche of emails by Congress that they got from the Epstein estate.

And after the release of these materials one thing that Todd Blanche, the Deputy Attorney General, said, was something to the effect of DOJ didn't have these materials. They were hidden by the Epstein estate for years.

That was, you know, the gist of the accusation that he made in a tweet that he posted.

That was a little bit confusing to me because, you know, my understanding of the Epstein criminal investigation is that they seized his devices and presumably would've had access to many of these materials.

Maybe not. I don't know. But I'm just curious, Eric or Mike, if Todd's, Todd Blanche's assertion to that effect stood out to you as credible or not credible based on what you know about how criminal investigations typically proceed and what we know from the public documents about what the law enforcement obtained with respect to Epstein?

Michael Feinberg: I don't want to answer whether Todd Blanche is credible or not credible in this matter. I will simply note that it is possible there are, you know, substantial amounts of documents in what the estate released that never were in the formal possession of law enforcement. By which I mean, is––we all know from having taken criminal procedure, warrants have to be particular.

You, and maybe people don't realize this, but like you could have a search warrant that allows you to search for files relating to a certain subject matter on somebody's computer. Now, realistically, the only way you're going to find those files on the computer is if you look at everything in the hard drive, but you're going to come across things that do not pertain to what you're looking for. And you sort of have like a science fiction movie device where your own memory gets wiped.

So you may have seen stuff that is incriminating in some fashion, you know, maybe not to the level of criminal charges, but the defendant would not want to see the light of day.

But if it's not the thing you're specifically authorized to look for in your search warrant, you're not retaining that information. You're not using it at trial. It essentially, for the purposes of legal process, with some exceptions, does not exist.

Anna Bower: Yeah, that makes sense to me. Because it's like, you typically have the raw returns, right, of, of what you seize or take off of a device. And then it's filtered to comply with the particularized requirements in the search warrant. Is that right?

Michael Feinberg: Yeah. And I mean, again, we're sort of colloquially using things that are terms of art.

So filter refers to a specific process when there are certain types of potentially privileged material. Let's say it's triaged. There is a preliminary look over everything in the device or on the server or what have you. And only the relevant stuff is processed by the investigative team.

Anna Bower: Yeah. So it's possible that then, you know, Blanche’s statement may very well be accurate in that in terms of what is actually kind of triaged that the government has in its possession did not include a bunch of this stuff that Congress had that was released. Interesting.

Eric Columbus: So I guess Blanche said two things. One, that he didn't have some or all of the stuff, and two, that it was hidden by the estate. I'm a little bit confused––

Michael Feinberg: So, so that's an accusation––I'm not quite sure how he would be in a position to make unless he had a very granular knowledge of the case file that I don't think anybody beyond the prosecuting attorney who no longer works for the Department of Justice because she had the misfortune to be born to the former director of the FBI.

I'm being sarcastic when I say misfortune. I just mean the accident of birth.

Eric Columbus: You want, Mike, you want to kind of just like explain that a little bit for the listeners who may not––

Michael Feinberg: Yeah. Yeah, so the original prosecutor over the Epstein case was Maureen Comey, who, as the public hopefully knows, is Jim Comey's daughter.

He is the former director of the FBI who oversaw the initial Trump-Russia investigations and is now the subject of an indictment on what I think most serious commentators would call politically motivated and potentially spurious charges. And Maureen Comey was fired, as far as anybody can tell, solely for being related to her father.

So I––my point being, though, is that for Todd Blanche to make the statement that things were withheld means he would have to be familiar with every single search warrant that was issued for the entire lifecycle of the federal investigation into Jeffrey Epstein.

He might also have to be aware of any subpoenas and seized material from any state investigations of Epstein, which the federal government was able to get ahold of as well. My point is just that like there's probably a really wide universe of what was asked for from the Epstein estate on multiple occasions spanning years.

And unless Todd Blanche is familiar with every single records request or warrant that was sent to everybody involved in this investigation, I don't know that he'd be in a position to say that the estate withheld these documents.

Eric Columbus: Yeah. Now, with these records, rather the emails, would they have been sought from the estate, or would they have been sought from Google? Was it––this was a Gmail account. Or both?

Michael Feinberg: So, I could see scenarios in which it's both. The much more likely answer to your question is, yeah, they were sought by the internet service providers, or by the domain or by the hosts of the webmail exchanges. Which would be Google or Yahoo or Hotmail or what have you.

But there is also a world in which individuals realize this investigation may eventually touch them, and before the government can get a preservation order or a warrant out to those email providers and hosts, the potential subject deletes––and not just archives, but actually trashes the entirety of their communications, but for some reason, they have them on a local hard drive at their residence, or maintained on a personal server, or even more unlikely hard copies.

So there is a set of circumstances where the government could need to request these records, both from the companies that provide the web services, but also from the individuals who sent or received them.

Anna Bower: Let's talk for a second about this investigation that has been announced that's being opened in the Southern District of New York. And I believe that this, announced subjects of that investigation are Epstein's relationships with Bill Clinton, Larry Summers, Reid Hoffman, JPMorgan Chase, and other people and institutions.

As you mentioned, Mike, this is largely Democratic subjects who are mentioned in the tranches of emails that were released in relation to the congressional oversight.

I have two questions for you both, for either of you, related to this. The first is, this comes on the tail end of a series of politicized prosecutions: James Comey, Letitia James, a number of investigations of Trump's perceived political opponents.

Is there anything about this development though, that strikes you as any sort of escalation of that conduct regarding the politicization of law enforcement and the Justice Department?

And then the second part of this question, too, is, do you even think that this is really a, going to be a real investigation? And I ask that in relation to Ben Wittes's kind of conceptualization that he is written about for Lawfare of the concept of a ghost investigation, which is essentially the announcement of the Justice Department doing something in relation to an investigation that Trump supporters and the MAGA base have long called for, when in fact there's, there doesn't seem to be much of a real effort, you know, put into actually following through with really trying to pursue criminal charges.

So, so for either of you, you know, what stands out to you in terms of those two respective questions?

Eric Columbus: I would say it certainly seems like an escalation even beyond what they, the very odd prosecutions of Comey and James.

And the reason I say that is that, in this case, rather with regard to Epstein, their July statement said––literally, I'm quoting here––“we did not uncover evidence that could predicate an investigation against uncharged third parties.” And this was after doing what they called an exhaustive review of investigative holdings related to Jeffrey Epstein.

So assuming that that's true, what they wrote there, it's a massive escalation. And I suppose it's––and in which case this would be, could expect a ghost investigation, to use Ben's words.

Now, I suppose it's possible that what they wrote in July is not true. And maybe, you know, this would seem unlikely to me, but theoretically possible that there is information out there about other people, other, let's say Democrats, that now they'll go back to and launch investigation into.

And that would be very odd and it would obviously raise further questions about Trump if they're, if they were covering up for––it seems rather unlikely that they've been covering up for Democrats without having some reason to be, at the same time covering up for either Trump or someone very close to him.

But that I think is the only scenario I can see where this turns into a real investigation.

Michael Feinberg: Yeah. Let me address just the concept of ghost investigations for a second, because this is something that I don't think is getting enough attention in the world of legal analysis. We have to foreground a fact that we should endeavor to always mention when discussing these sorts of things, because it really is important. And that is, DOJ is not functioning normally.

In any normally functioning DOJ, you would only have an investigation open because there is predication based on articulable facts that a crime has been committed. It is unheard of in United States history for the modern era, certainly since the era of the Church Committee, that a president's order to look into a named political enemy would even be entertained by the FBI director or the attorney general.

This is solely a function of having a combination of people at the highest levels of those departments who are either––because they lack any sort of real world experience in these matters––not familiar with not just the norms of DOJ and the FBI, but also its internal regulations and policies, or they're aware of those things and simply do not care because heeding those guardrails would make them cross the person who appointed them.

What we are seeing––the very existence of a ghost investigation, in and of itself, is to me at least prima facie informal evidence of a corrupt process.

Anna Bower: Okay, we will leave it there.

Eric and Mike, thanks so much for speaking with me today.

Eric Columbus: Thank you, Anna.

Michael Feinberg: Thanks Anna.

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