Why the U.S. Justice Department and Congress may battle over redaction of Epstein files

If U.S. Section of justness (DOJ) officials ar dictated to reviser or withhold something in the Jeffrey Epstein files before their release to the public, it’s likely they can find a way.

"The government does tend to over-redact, never under-redact," said Eric O’Neill, a national security lawyer and former FBI counterintelligence operative.

"You’re trained to over-redact. If there’s any question, you just redact and you hope the other side doesn't call it into question.”

O’Neill should know, as he has played both sides. He redacted documents for the FBI and, as a lawyer, has fought to have documents unredacted.

When it comes to the Epstein files, there are some solid reasons to withhold certain information, he says. However, there are also grey areas that could cause disputes between the DOJ and members of Congress, who on Tuesday passed the Epstein Files Transparency Act, which forces the release of the department's files on the convicted sex offender. It was signed into law on Wednesday. 

Any fights could also frustrate those seeking as much information as possible about the case.

The moment the House voted on releasing the Epstein files

The bill also makes it clear that records can’t be withheld, deleted or redacted “on the basis of embarrassment, reputational harm, or political sensitivity, including to any government official, public figure, or foreign dignitary.”

It further states that Attorney General Pam Bondi must submit to both the House and Senate a report that lists all categories of records released and withheld plus a summary of redactions made and the legal basis for them.

Virginia Canter, ethics and anti-corruption chief counsel and director of the Democracy Defenders Fund, says the DOJ can try any number of tricks to stonewall the release of these records, including a provision about ongoing investigations.

“I don't think anybody is so naive to think that we can trust this Department of Justice to do the right thing,” she said.

Still, Canter said, “there is a good measure of accountability there" in the bill.

The bill, however, allows the  DOJ to withhold or redact any records in certain circumstances, including information which could identify victims, materials that contain child sexual abuse, images of abuse or death, and information that has been authorized to be kept secret in the interest of national defence or foreign policy.

Yet the clause that appears to be the most concerning to some observers, allows the DOJ to redact information that "would jeopardize an active federal investigation or ongoing prosecution."

U.S. President Donald Trump recently ordered Bondi to open an investigation into Epstein's connections to three prominent Democrats: former president Bill Clinton, former treasury secretary Larry Summers and the billionaire founder of LinkedIn, Reid Hoffman.

Barbara Mcquade, a former U.S. Attorney for the Eastern District, says that will allow Bondi to withhold anything that she considers relevant to that investigation. 

That could include any mention of her boss, whose personal history with Epstein has fuelled speculation for years.

Epstein survivors speak ahead of U.S. Vote on releasing documents

But Canter says she believes if the DOJ tries to use "active federal investigation" as an excuse to withhold information, it will be met with some significant political and public blowback.

"I think that members [of Congress] would hold them to some level of account," she said.

"You had a nearly unanimous vote in the House ... It was unanimous consent in the Senate, and you look at the overwhelming public sentiment on this."

O’Neill says while an ongoing investigation a common reason to redact information, it's a murky area where you see a lot of over-redacting.

“That’s where you might see a fight with Congress saying ‘OK, but we said all of it, we don’t care about your ongoing investigation,'" he said.

O’Neill says other information that will be redacted or withheld could also include anything related to co-operating witnesses. 

“Any of the individuals who were contacted by the FBI and were complicit in any way, shape or form — who were really smart and got lawyers and said, 'Give me immunity and I'll co-operate and help you take down the big people.' Their names are not going to be in there."

O’Neill says any of the files that contain testimony, exhibits, or subpoenas that were part of the grand juries to charge Epstein or his former girlfriend Ghislaine Maxwell will also be out of bounds.

Drafts, strategy, legal opinions and internal debates between the DOJ and FBI also won't be disclosed because of legal privilege, he says. As well, anything that's related to an undercover operation, or information gathered under the Foreign Intelligence Surveillance Act, will be redacted.

"And that's the juicy stuff," he said. "Where they got a warrant and they are wiretapping or looking at emails or texts and it's an ongoing investigation — that's the stuff we want to see and we're not going to see it.

"And that's going to upset people.”

Senior Reporter

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