After a Strategic Retreat, Trump Has Many Moves Left to Prevent Release of the Epstein Records
After the House vote, he can resume playing hardball—and the preservation of the records during this fight is a real question.
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Has Donald Trump abandoned his official and political war over the demands for disclosure of the “Epstein files” held by his Department of Justice? In response to the public release of Epstein emails with Trump’s name on them, and as the House neared a vote on a bill to compel the department’s disclosure, he had waged a multi-front battle against its passage. The president reportedly pressured members of his party in private to oppose the bill and broke publicly over the issue with Georgia Representative Marjorie Taylor Greene, formerly an ardent supporter of the president who has now disparaged her as a “traitor.” Then, on Friday, he directed the attorney general to open an investigation of Epstein’s relationship with Democrats, financial institutions and “many other people and institutions.” The AG responded quickly by directing the U.S. Attorney for the Southern District of New York to proceed accordingly.
But as a large number of House Republicans appeared poised to join Democrats in passing the Epstein Files Transparency Act (EFTA) this week, Trump yesterday called on House Republicans to support the measure. He stood by his position that the call for the release of the records was a “Democratic hoax,” and, as he has said before, he repeated that he has “nothing to hide.”
But it is far from clear that this apparent reversal of position represents more than a strategic retreat for the moment in the face of certain loss in the House and a large defection of Republicans breaking with their president to vote for the bill. Trump announced that his Justice Department would provide the House Oversight Committee with “whatever they are legally entitled to” (emphasis added), and Johnson dismissed the upcoming vote as no more than a “political exercise.” The bill, if passed by the House, reportedly faces “long odds” in the Senate. Trump also affirmed in his Truth Social announcement on the vote that the fight with the Democrats over the records would continue: The department would pursue the investigation he directed into their party’s alleged links to Epstein.
There is no way to know from the public record whether Trump is defending against the disclosure of especially damaging revelations about this relationship to Epstein, or more of the same material showing that his relationship to the financier was closer than he has claimed. The journalist Michael Wolff, who by the evidence of recently released emails, acted as an “unofficial consigliere” or media adviser to Epstein, has previously alleged that Epstein showed him disturbing if not incriminating photographs of Trump in the company of young women. The recently released emails include one in which Epstein suggests he has photos of this kind.
Whatever may be the case, if Trump pursues the fight against the release of the Epstein case files—or any portion he may be particularly concerned about—he has at his disposal a variety of options. The choices available to him include the firewall of pardons for those who may at his direction or otherwise withhold, alter or destroy material he does not want to emerge to the light of day. This and other options for fighting release raise complicated questions, such as whether Trump can deploy these defenses without legal risk to himself of engaging in cover-up conduct, whether in theory Congress could respond with measures of its own to raise those risks, and whether in the end a claim of presidential immunity provides him, and his subordinates, with full personal protection.
The Article II and Statutory Defenses
If the House and the Senate both pass the Act, Trump could, of course, veto it, leaving to Congress whether it could override the veto with a two-thirds vote in each chamber. If the Epstein scandal intensifies and this override comes to pass, the administration may simply refuse to comply with it, asserting, among other defenses, that the law is an unconstitutional infringement on the president’s Article II power over the management and direction of the Department of Justice. It would likely focus its attack on the EFTA’s sweep in seeking, among other records, “internal DOJ communications, including emails, memos, meeting notes, concerning decisions to charge, investigate, or decline to investigate Epstein or his associates.” These defenses would be consistent with Trump’s announcement last night that he would release to the House Oversight Committee whatever it is “legally entitled to.”
This defense would be based in part on the new investigation Trump has now ordered up. The EFTA, if passed, would be seeking records in an ongoing, not a past, investigation. It already contains a provision that would permit the attorney general to withhold “records that…would jeopardize an active federal investigation, provided that such withholding is narrowly tailored and temporary.” Now Trump can claim that an “active investigation” is underway, even if it is focused on Democrats’ relationships with Epstein, with apparent omission of his own history of association with the financier. He and Congress would then have to dispute whether any withholding is “narrowly tailored,” and at that point the argument will have shifted from the question of whether the president can withhold records to the very different one of how much.
The advantage in that fight may lie with Trump, as does any conflict over what it means for a withholding to be “temporary.” (What comes to mind is Trump’s insistence nine years ago that he would eventually release his tax returns, as soon as the IRS audits were completed.)
Pardons for Concealment, Alteration or Destruction
Meanwhile, it is reasonable to wonder about the preservation of the records in dispute. There is history to support this concern. In the Watergate scandal, which ended the Nixon presidency, the special prosecutor subpoenaed the White House for the production of the tapes of Oval Office conversations, and Nixon lost a legal challenge to the demand. One such tape of a relevant conversation, known to include discussion between Nixon and his chief of staff about the Watergate break-in, had undergone a series of erasures, resulting in the infamous “18-and-a-half-minute gap.” An investigation ordered by a court concluded that, contrary to White House claims, the erasures were unlikely to have been accidental. The district court judge presiding over the Watergate prosecutions referred the matter to a grand jury, but no indictments were returned, and to this day, the persons responsible for the erasures are unknown.
In the Epstein case, Trump can provide protection for any who engage in the concealment, alteration or destruction of the records: He can issue preemptive pardons to any and all involved in these and other ways in supporting his defense against what he has termed the “Jeffrey Epstein hoax.” In justifying a slew of pardons, he will argue that he is dealing with yet another instance of his enemies acting in bad faith to destroy him and thwart his presidency, and that he must protect members of his administration from retributive lawfare. As he proclaimed on Truth Social, “This is another Russia, Russia, Russia Scam, with all arrows pointing to the Democrats.” Donald Trump continues to issue pardons like no president before him, and the use of the pardon in this situation, for a politically self-interested purpose, would be very much in keeping with others given out so far in this administration. Except that this one would be of particular personal importance to him.
Jack Goldsmith and I have written that “there is a good argument one obstruction of justice statute, 18 §1503, already prohibits a president from using a pardon…in exchange for the recipient’s false or misleading testimony in a judicial or other proceeding.” The same reasoning would extend beyond false testimony to a quid pro quo exchange of a pardon for the destruction of evidence. We noted that in 2018, prior to becoming attorney general, Bill Barr wrote a memorandum for the White House on obstruction and expressed the view that a president “can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function” and that such exposure to criminal liability did not intrude on his Article II authority.
A pardon issued in the hypothetical Epstein matter posed here remains effective for the pardonee, but it would not insulate the president’s act in abusing the pardon for this unlawful purpose. It may turn out that the president’s decision to institute a new investigation cuts both ways. He has launched a counterattack against his adversaries and given himself additional grounds on which to resist disclosure to protect the “integrity” of this inquiry. But because there is an active investigation, the potential application of the obstruction statutes has been triggered.
To be sure, there are complications in this application of the extant criminal law. One is the absence of a specific reference to the president in the law, which raises a question under the “plain statement” rule about whether it covers him. Another is the novel application of the law to pardons (or other grants of clemency). Congress could amend the statutes, ensuring that they apply to presidents and vice presidents and to pardons as the means by which the obstruction is achieved.
The Scope of Presidential Immunity under Trump v. United States
But a further complication has arisen since the Supreme Court issued its decision on presidential immunity in Trump v. United States. As Jack has pointed out, however, the Court’s stress on the president’s “preclusive and conclusive authority” over investigations and prosecutions has cast into doubt the constitutionality of the obstruction statute. He notes, “That is, after all, what happened in Trump: Congress had made it a crime to obstruct a congressional proceeding, but the Court held that Congress lacked the power to make this law applicable to the President’s alleged sham investigation of state election fraud because the investigation implicated the President’s exclusive investigative authority.”
Whether this is the actual effect of the case remains unsettled. The majority opinion suggests, in footnote 3, that a bribery prosecution remains constitutionally viable so long as evidence in the form of “testimony or private records of the President or his advisers” probing the official act itself is excluded. But a president’s lawyers challenging a public corruption prosecution would surely press the broader claim that, after Trump, the case cannot be brought at all.
If Trump does not preclude the prosecution, it then presents the fundamental question: Would the use of the pardon to commit obstruction of justice in these hypothetical circumstances—to defend against personally and politically damaging disclosures about conduct prior to his presidency—constitute an “official act” conferring absolute immunity? And would communications with DOJ or White House officials for this obstructive purpose be excluded from evidence in a later criminal proceeding initiated by a future administration as within his “preclusive and exclusive authority” over investigations and prosecutions? And does whatever immunity he enjoys attach to subordinates acting at his express or implied direction?
Conclusion
Should President Trump be determined to block the release of the Epstein records, or any part of particular concern to him, he has a range of options. He has begun to exercise some of them, publicly directing the Justice Department to open a related investigation of the opposition party and its purported allies, which positions DOJ to resist disclosure on the claim that releasing records would compromise an ongoing investigation. But this may be just the opening move. What follows may be the legally uncontroversial exercise of his power to veto the bill if it passes, a more complicated and more contested claim to reject Congress’s authority to make the demand in the first instance, and perhaps, as a last resort, the use of the pardon power and assertions of presidential immunity to dispose of records he does not wish to reveal.
Years of conflict and litigation could lie ahead, and the prospect for a disclosure that Trump chooses by all available means to prevent may be slim. The vote on the Epstein Files Transparency Act will now mark the beginning of Congress’s engagement in the matter. Its actions at this stage—and each successive phase of this conflict—cannot be judged only on the immediate question of public access to the Epstein records. The congressional response will also matter to the longer term, complex challenge of establishing the terms of accountability for an increasingly unconstrained executive.