Trump’s Epstein Fiasco Worsens as
Dems Suddenly Find Big New Weapon
Senate Democrats are using a 1928 law
to pressure Trump to release the Epstein files. The White House will ignore
them. Here’s what could happen next.
Desperate
times may call for desperate measures, but they also call for creative ones.
Faced with a criminal president and a GOP congressional majority that’s wholly
devoted to shutting down any and all transparency and accountability for him,
Democrats will have to get increasingly resourceful in their efforts to crack
through that facade. The very tentative good news is: They actually have
options to do just that.
This
is why you should pay attention to the news that Senate
Democrats are now exercising an obscure, rarely used law to try to force
transparency on the so-called Epstein files.
The
New York Times reports that seven
Democrats on the upper chamber’s Homeland Security and Governmental Affairs
Committee just sent a letter to DOJ demanding that it turn over the information
it has compiled related to the investigation pursuant to the 2019 arrest of
Jeffrey Epstein on sex-trafficking charges, using a decades-old statute:
Under a section of federal law commonly referred to in the
Senate as the “rule of five,” government agencies are required to provide
relevant information if any five members of that committee, which is the
chamber’s chief oversight panel, request it.
The letter spells out
exactly what Democrats are demanding, calling for the release of “all
documents, files, evidence, or other materials in the possession of DOJ or FBI
related to” Epstein’s prosecution, including “audio and video recordings” and
much more.
This
is a good move. Let’s start with the law in question: It states that if “any five members” of that
Senate committee request “any information” that is “related to any matter
within the jurisdiction of that committee,” the relevant executive agency
“shall” submit it. There’s a companion provision for the House.
A
historical parallel here is worth noting. This 1928 law was passed in the wake
of the Teapot Dome scandal, according to David Vladeck, a professor of government at
Georgetown. That scandal, which involved a corrupt Cabinet member under
President Warren Harding taking bribes in exchange for oil leases, resulted in
higher public awareness of governmental corruption and the need for better
congressional oversight to ensure transparency.
Critically,
though, the statute that Senate Democrats are now invoking, Vladeck says, was
originally designed to “ensure that the minority” in Congress “has real access
to what executive agencies are doing.” As you may have noticed, this is a
particularly urgent need right now: Democratic efforts at oversight have been
entirely blocked by the GOP majority, which is devoted to protecting Trump at
all costs.
House
GOP leaders literally shut down a vote on
whether to release the Epstein materials. And while there are scattered indications that
some Republicans do want to force more transparency on the White House this
fall, after congressional recess ends, it’s easy to imagine nothing coming of
that, especially if and when Trump commands them to stand down.
Enter
this new effort by Senate Democrats. There are reasons to think it might do
some good.
Obviously
the Justice Department will ignore the demand. But Senate Democrats can then
try to take the administration to court. “The Justice Department has to
comply,” congressional scholar Norman Ornstein told me. “If they refuse, Senate
Democrats need to sue the attorney general and the Justice Department for
failure to comply with the law.”
Democrats
seem to agree, as Democratic leader Chuck Schumer appeared to confirm at a
press conference on Wednesday. “This is the law,” Schumer said. “This can be
challenged in the courts.”
Congressional
procedure expert Sarah Binder says the whole matter will then turn on what the
courts say. “The statute is very clear—agencies shall provide
these documents,” Binder told me. “The question is whether the courts would
agree that a group of senators, as opposed to the whole chamber, has standing
to sue.”
Here
there’s reason for (very) cautious optimism. House Democrats got pretty far the
last time this was attempted. They invoked the statute in 2017 to try to force
the first Trump administration to divulge information related to the Trump
International Hotel in Washington, D.C., which raised many ethical issues.
Importantly,
an appeals court ruled that House Democrats did have standing to bring this
lawsuit. And the Supreme Court even agreed to hear the
case in 2023. But that never happened because the Democrats ended the lawsuit
after they received the documents they’d sought.
Now
this same question could be considered by the high court, only this time on the
Epstein case. Vladeck, who was involved in the previous litigation, says he
thinks this is likely, precisely because the courts already tilled so much
relevant ground in that litigation. Appeals courts will rule the same way this
time, Vladeck predicted, with the result that “this case” or one like it “will
have to get to the Supreme Court.”
Obviously,
it’s anybody’s guess how the high court would then rule. But sustained legal
efforts like these will keep the media focus on what the administration
is refusing to do in the face of overwhelming public interest
in getting to the bottom of this scandal. And it will keep the focus on what
the courts are doing.
“The
courts can screw around with this, but it would clearly be saying, ‘We don’t
care about the law,’” Ornstein told me. “Every time we can shed light on the
unwillingness of John Roberts and the Supreme Court to do anything about
Trump’s lawlessness, the better off we are, even if it’s far from ideal.”
I’ve argued that
there’s real value in efforts like this from the minority. They can be
constructive if they impart new information to the public or shine a glaring
light on the failure of others in power to impose accountability. As Marcy Wheeler notes, it
can also help break through the clutter.
The
failure of accountability is everywhere in the Epstein matter. After
campaigning on a promise of transparency, the president—with the active
assistance of most of the GOP—is thwarting disclosure of untold damning
information involving a ring of child predators, information that quite
possibly involves some of the richest and most powerful people in the world,
including the president himself.
It’s
easy to give up on congressional oversight. But Democrats have options for
getting very creative. No matter how hopeless it might seem at times, we
shouldn’t lose sight of that, lest we do Trump’s (very) dirty work for him.
Democrats: Stay on this, and don’t let up.
Greg Sargent is a staff
writer at The New Republic and the host of the podcast The Daily Blast. A seasoned political
commentator with over two decades of experience, he was a prominent columnist
and blogger at The Washington Post from 2010 to 2023 and has
worked at Talking Points Memo, New York magazine, and
the New York Observer. Greg is also the author of the critically acclaimed book An
Uncivil War: Taking Back Our Democracy in an Age of Disinformation and
Thunderdome Politics.
