The
Justice Department Hits a New Low with the Epstein Files
Not only is the
department’s behavior not normal; it is also, as is becoming increasingly
clear, self-defeating.
By Ruth Marcus
November 23, 2025
On a Friday evening in October, 2021, the Justice
Department launched into damage-control mode. The Attorney General, Merrick
Garland, the Deputy Attorney General, Lisa Monaco, and other senior officials
gathered on an emergency conference call to decide how to deal with what they
considered out-of-line remarks from President Joe Biden.
Steve Bannon, the former adviser to
Donald Trump, had defied a subpoena from the House select committee
investigating January 6th. Committee members were weighing whether to refer
Bannon to the Justice Department for prosecution. The White House press secretary,
Jen Psaki, had ducked commenting on a matter of such delicacy. “That would be
up to the Department of Justice, and it would be their purview to determine,”
she told reporters. “They’re independent.” But Biden, asked by the CNN reporter
Kaitlan Collins whether he thought those who ignored subpoenas should face
contempt charges, didn’t mince words. “I do, yes,” he said.
As Carol Leonnig and Aaron C. Davis
report in their new book, “Injustice,” those three words so alarmed Garland and
his team that they felt compelled to issue a statement effectively rebuking
their boss. Just fifty-one minutes after Biden’s comments, the department’s
chief spokesman, Anthony Coley, released this deliberately tart comment: “The
Department of Justice will make its own independent decisions in all
prosecutions based solely on the facts and the law. Period. Full stop.”
Compare this with the reaction of
another Department of Justice, on another fall Friday, four years later, to a
Presidential directive that was far more pointed. “Now that the Democrats are
using the Epstein Hoax, involving Democrats, not Republicans, to try and
deflect from their disastrous SHUTDOWN, and all of their other failures, I will
be asking A.G. Pam Bondi, and the Department of Justice, together with our
great patriots at the FBI, to investigate Jeffrey Epstein’s involvement and
relationship with Bill Clinton, Larry Summers, Reid Hoffman, J.P. Morgan,
Chase, and many other people and institutions, to determine what was going on
with them, and him,” Trump posted on Truth Social. “All arrows,” he wrote, are
“pointing to the Democrats.”
This time, the answer from the
Attorney General was not full stop; it was full speed ahead. “Thank you, Mr.
President,” Bondi replied on X, as if grateful for the assignment. Jay Clayton,
the U.S. Attorney for Manhattan, would “take the lead,” she assured Trump.
William Barr, Bondi’s predecessor during Trump’s first term, was driven to
complain publicly that the President’s frequent tweets about pending cases
“make it impossible for me to do my job.” Bondi takes instant obedience to
Trump’s social-media edicts as her job description.
A challenge of covering Trump’s
Washington is to guard against being worn down by the unceasing flow of
aberrant behavior, one politically motivated and factually deficient
investigation after another. But, until the announcement of Clayton’s probe,
Trump’s Justice Department at least engaged in the flimsy pretense that it was
investigating crimes—that there was some basis (“predication,” in the language
of the D.O.J.) for F.B.I. agents and prosecutors to be rooting around in the
actions of the President’s political enemies. Trump’s prosecution by social
media, and Bondi’s eager compliance, cross yet another line once thought
inviolable.
Not only is this behavior not normal;
it is also, as is becoming increasingly clear, self-defeating. Experienced,
ethical prosecutors want to have nothing to do with political prosecutions.
That leaves such cases in the inexperienced hands of attorneys like Lindsey
Halligan, the insurance lawyer named by Trump to serve as U.S. Attorney for the
Eastern District of Virginia, after his initial pick for that job, Erik
Siebert, balked at bringing mortgage-fraud charges against New York’s attorney
general, Letitia James. So it was that Halligan found herself appearing for the
first time before a grand jury, racing against a statute-of-limitations
deadline to file false-statements charges against the former F.B.I. director
James Comey. Last Monday, a federal magistrate judge, citing a “disturbing
pattern of profound investigative missteps,” granted the “extraordinary remedy”
of giving Comey access to grand-jury materials. These are ordinarily secret,
but the judge said that Halligan had made “fundamental misstatements of the law
that could compromise the integrity of the grand jury process.”
The judge’s order is partially
redacted, but Halligan appears to have misled the grand jurors about Comey’s
constitutional right not to testify. The judge also found that, as grand jurors
wrestled with whether there was adequate evidence against Comey, Halligan
“clearly suggested” that “they did not have to rely only on the record before
them to determine probable cause but could be assured the government had more
evidence—perhaps better evidence—that would be presented at trial.” This is not
how prosecutions work. Grand juries aren’t instructed to issue indictments in
the hope that the government produces more proof down the road. Halligan filed
an emergency appeal, but her seeming incompetence could doom the case against
Comey. On Wednesday, the district judge hearing the case, Michael Nachmanoff,
questioned Halligan about whether the indictment was valid if all the grand
jurors had not approved the final version—something that she acknowledged, but
then later denied.
In the end, it took just two days for
Trump to shift from decrying the “Epstein Hoax” to backing a House move to
order the Justice Department to release the Epstein files. No matter that he
had just gone to extreme lengths to pressure lawmakers to vote against the
measure. No matter that he didn’t need to wait for congressional action; he
could order the release on his own. This was a humiliating about-face of the
sort we’re not used to seeing from the President, but it reflected Trump’s
bowing to the inexorable political arithmetic: a single Republican House
member, Clay Higgins, of Louisiana, voted against the bill, and the Senate
passed it with unanimous consent and sent it to Trump, who signed it. Despite
that lopsided vote, the documents may not be so quickly forthcoming; the
Justice Department could seek to invoke the investigation that Trump ordered up
to avoid releasing the files. The Republican-controlled Congress may be showing
stirrings of independence, however belated. But the President can take solace
in the knowledge that he still has the subservient Attorney General of his
dreams. ♦
