Today the House Oversight Committee issued this subpoena to Attorney General Pam Bondi seeking all documents in the possession of the Justice Department relating to Jeffrey Epstein, including documents relating to the investigations of Epstein and his associate, Ghislaine Maxwell, for human trafficking, exploitation of minors, sexual abuse, or related activity.
Ordinarily DOJ would resist producing most, if not all, of the responsive material on various purported privilege grounds, including the “law enforcement” privilege, the attorney-client privilege, and the presidential communications privilege (the subpoena specifically requests communications between the Executive Office of the President and the Justice Department regarding the Epstein matter). The political context of this subpoena, however, makes this anything but an ordinary matter, and it is possible that Bondi will decide to produce responsive documents without asserting some (or any) of the arguably available privileges. This, of course, is her right; nothing obligates the executive branch to assert privilege in response to a valid congressional subpoena.
There is, however, one exception. Under Federal Rule of Criminal Procedure 6(e), it is a criminal offense to disclose “a matter occurring before the grand jury” unless a recognized exception applies. Thus, to the extent that the House subpoena covers grand jury transcripts, for example, DOJ cannot lawfully provide them unless a court agrees they are covered by an exception to grand jury secrecy.
Even before the House subpoena issued, in fact, DOJ had applied to federal courts in New York and Florida requesting that the Epstein grand jury transcripts be unsealed. Unfortunately, there is no specific statutory exception that would allow unsealing in this case. The only way that a court could allow public disclosure of the transcripts would be to rely on its inherent authority and, several federal circuits (including the Eleventh Circuit) have held that there is no inherent authority to disclose grand jury material. Because it was bound to follow this Eleventh Circuit caselaw, the federal court in Florida denied DOJ’s application, noting that “the Court’s hands are tied—a point the Government concedes.”
What the Florida court was too polite to mention is that DOJ itself advocated for the Eleventh Circuit precedent in question (which was decided in 2020 during the first Trump administration) and similar restrictive decisions in other circuits. DOJ also fought vigorously the attempt by the House Judiciary Committee in 2019 to obtain grand jury materials related to the Mueller investigation. DOJ lost that case at the district court and D.C. Circuit on the ground that the committee was conducting an impeachment investigation which therefore fell within 6(e)’s exception for disclosures preliminary to or in connection with a “judicial proceeding,” but DOJ was still in the process of seeking Supreme Court review when the first Trump administration ended, thereby mooting the case. In any event, DOJ’s official position (presumably) remains that courts have no authority to release grand jury materials in response to congressional subpoenas, even in the impeachment context, and certainly not in the case of oversight subpoenas such as that issued today. (In fairness, DOJ’s hostility toward exceptions to grand jury secrecy predates the Trump administration.)
In short, there is no way for DOJ to lawfully provide the House Oversight Committee with grand jury material responsive to its subpoena without permission from a federal court, and, unless it is recanting its prior views, its position is that no federal court has the authority to grant such permission. Even if it were inclined to change this position, the weight of federal court opinion (adopted at DOJ’s urging) says that there is no such authority in the case of oversight (as opposed to impeachment) subpoenas.
This might not be such a big deal if we were only talking about grand jury transcripts. However, DOJ has also taken a much broader view of what constitutes a “matter occurring before the grand jury.” It interprets this phrase to include not only grand jury transcripts, subpoenas and other documents that directly show what happened in the grand jury, but materials which merely relate to the grand jury investigation, such as documents collected in the course of the investigation, witness statements taken outside the grand jury room, and many other documents. Many of the most important documents responsive to the House Oversight subpoena therefore may be covered by DOJ’s expansive view of grand jury material. If it produces these documents without court permission, it will be committing a crime, at least based on its own view of the law. And its own view of the law says that the courts are powerless to grant such permission even if they are asked to do so.
That leaves Attorney General Bondi in something of a difficult position.