Over the past few months, and in open defiance of decades of post-Watergate norms, President Donald Trump has repeatedly (and openly) directed the Department of Justice to investigate specific people, entities, or episodes, without basis, for his own political and personal retributive reasons. The targets have included former FBI Director James Comey, New York Attorney General Letitia James, Senator Adam Schiff, and former FBI director Christopher Wray. We cannot allow ourselves to become numb to this abuse of DOJ’s immense power. And yet, somehow, Trump managed to cross a new line this week.
This past Friday morning, amid increased pressure to release the FBI’s Epstein files following newly revealed emails from Epstein’s estate, Trump “asked” the FBI and Justice Department to investigate Epstein’s “involvement and relationship” with prominent Democrats “Bill Clinton, Larry Summers, Reid Hoffman, J.P. Morgan, Chase, and many other people and institutions.” Conveniently, he ignored the fact that his name appears in more than half of the 2,000-plus emails from Epstein’s estate, including messages suggesting that he “knew about the girls” and had spent “hours” at Epstein’s house with one of the victims.
When Trump’s “Pam” Truth Social message was mistakenly made public in October, where he called Comey, James, and Schiff “guilty as hell,” Attorney General Bondi tried to feign some independence, claiming it wasn’t a directive to investigate these individuals. This time, however, Trump not only publicly “asked” the DOJ to investigate certain individuals other than himself, but the Attorney General enthusiastically said “OK!” She re-posted his demand within hours and announced that the U.S. Attorney in the Southern District of New York would take on this “investigation.” She wrote: “Thank you, Mr. President. SDNY U.S. Attorney Jay Clayton is one of the most capable and trusted prosecutors in the country, and I’ve asked him to take the lead. As with all matters, the Department will pursue this with urgency and integrity to deliver answers to the American people.” Thank you? Integrity? Answers? There are no longer even any illusions of independence or objectivity.Worst of all, this was not “merely” a directive to investigate political opponents (Democrats), but a (not so subtle) implicit warning to ignore Trump’s involvement. The message is: Don’t look here – look there. And the AG is going right along with it.
Putting aside the fact that the DOJ almost never “announces” investigations in normal times, what exactly is the SDNY supposed to be investigating? Just a few months ago, the AG and the FBI issued a joint statement that a review of its Epstein files uncovered no evidence of any client list kept by Epstein or “other evidence that would predicate a criminal investigation of any uncharged parties.” How could that finding of “no predication”–the requirement to open or reopen a criminal investigation–have changed in just five months after the supposedly comprehensive review? Even assuming the Epstein estate emails were not previously in the possession of the DOJ and FBI and raise new questions deserving of scrutiny, that scrutiny cannot be limited to just these Democrats Trump named and Bondi green-lit. If new evidence or information emerges after an investigation is closed, the appropriate law enforcement response is to review the evidence and see where it leads; it is never to say, “Go investigate these specific individuals” (and not others) who appear in that information.
Think about what Trump said and Bondi adopted and sent to SDNY, namely, to investigate Epstein’s “involvement and relationship” with certain named individuals. The statute of limitations has almost certainly run on most potential offenses except child sex crimes. More importantly, “involvement” and “relationship” even with a criminal is not itself a criminal offense. Association alone is not a crime. And if it were, where is Trump in that list? Why is there a list of predetermined subjects at all?
So, what happens now? Some have suggested that Trump and Bondi staged this pretext of an “investigation” in order to be able to block the release of the FBI’s Epstein files demanded by the survivors, lawmakers and the public. That is certainly plausible: an active grand jury investigation could act as a legal shield against disclosing related documents. One thing worth noting after the sham proffer of Ghislaine Maxwell by Deputy AG Todd Blanche in August–it would be entirely inconsistent with initiating any real Epstein “investigation” to pardon Maxwell–yet, as recently as Saturday, Trump refused to rule it out.
No one knows exactly how this will play out, but I do know one thing with certainty: The rank and file men and women of the SDNY and the FBI in New York will do their best to handle this with their usual integrity. They will not allow themselves or their offices to be used as political pawns. And this is a crucial test for the one person who must have their backs and withstand political pressure to misuse the criminal justice system: U.S. Attorney Jay Clayton. It is far from clear what exactly Clayton has agreed to do with respect to this “investigation.” I and some current and former SDNY attorneys I have spoken with have criticized his failure to publicly address the baseless firing of Maurene Comey, one of the lead prosecutors in the Epstein and Maxwell case, under his watch. Others have noted his increasingly politically tinged interviews in the news media lately. Now comes the real test. The real question for him is whether he will follow in the footsteps of Danielle Sassoon and Erik Seibert who acted on principle to protect the Justice Department’s integrity, or of Lindsay Halligan, who did not.
