Don’t Hold Your Breath for More Epstein Prosecutions

The release of the Epstein files was supposed to quell the controversy over whether the late convicted sex offender Jeffrey Epstein committed child sex crimes with a host of wealthy, prominent men. But more than a month after the release, something like the opposite has happened.

A variety of public figures in the U.S. have incurred professional and reputational consequences as a result of socializing with Epstein after his 2008 conviction for soliciting prostitution with a minor. So far, however, none of these people have been credibly accused of any criminal wrongdoing or being aware of Epstein’s subsequent child sex trafficking.

In Europe, things are only slightly different. Law enforcement authorities across the continent have opened investigations into prominent political figures concerning their dealings with Epstein, but thus far, those investigations appear to concern alleged political misconduct — like sharing confidential government information with Epstein or receiving gifts from him — not sex crimes.

Meanwhile, as entirely new conspiracy theories have begun to flourish, pretty much no one in America is happy — not the victims who were insulted by Attorney General Pam Bondi during her latest daylong series of outbursts on Capitol Hill; not President Donald Trump, who effectively created this mess by fueling Epstein conspiracies as a presidential candidate and who remains the subject of intense scrutiny based on unverified allegations against him in the documents that he has strenuously denied; not the American public, most of whom believe that the government is still hiding information; and not the lawmakers who drafted and ultimately passed the law requiring disclosures with the near-unanimous consent of their colleagues in both houses of Congress. In a remarkable bipartisan rebuke, the House Oversight Committee voted last week to subpoena Bondi to testify with five Republicans joining the Democrats on the committee over the objection of Chair James Comer (R-Ky.).

Where there is smoke, there is often fire. But in this case, Americans should brace themselves for the very real prospect that there will be no more credible criminal prosecutions in the U.S. in the wake of the Epstein files release. I also raised that scenario with the law’s co-sponsors, Reps. Thomas Massie (R-Ky.) and Ro Khanna (D-Calif.), who have long argued that further prosecutions are overdue. More on that below.

This would disappoint many people, but the reality is that thus far, there has been no compelling evidence that the Justice Department failed to charge someone involved in Epstein’s child sex-trafficking who should have been charged, nor does there appear to be compelling evidence of an international child sex-trafficking ring involving prominent men. This could change as more files are released, more redactions are removed or perhaps if compelling new evidence somehow emerges, but this appears to be the state of play at the moment.

The public has obvious reason to be skeptical of the Trump Justice Department, but even if the DOJ did end up launching new Epstein-related prosecutions, it would represent a remarkable reversal. The Justice Department has maintained since last July that the government “did not uncover evidence that could predicate an investigation against uncharged third parties.” Deputy Attorney General Todd Blanche reiterated the Trump DOJ’s position after the release of the files in January, and department officials have maintained it since.

Many theories have been floated in recent years about why prosecutors did not bring charges against more people in addition to Epstein and Ghislaine Maxwell over the course of the first Trump and Biden administrations. Maybe someone was corrupt, maybe someone blackmailed someone, etc.

The answer appears to be much more pedestrian: The prosecutors in charge of the case at the time of Epstein’s death concluded that they did not have sufficient evidence to charge anyone else.

You can read much of the line prosecutors’ analysis in an internal DOJ memo — entitled “Investigation into Potential Co-Conspirators of Jeffrey Epstein” — that they prepared in December 2019, several months after Epstein died, for the U.S. Attorney in Manhattan at the time. Much of it is redacted, but the unredacted portions provide key insights into prosecutors’ thinking and make clear the serious evidentiary obstacles that they encountered in the course of their work alongside the FBI.

The memo described some of the victims’ accounts of Epstein and Maxwell’s crimes in (horrifying) detail and concluded that Epstein had “created a vast network of underage victims” with the assistance of “employees and associates who facilitated his exploitation of minors.”

Deep in the memo, prosecutors addressed the claim made by Virginia Giuffre, one of Epstein’s most vocal accusers, that she and others had been “lent out” to other men for sex, but prosecutors reported that they had “been unable to corroborate” those claims. Giuffre had specifically named several other women, but prosecutors said that Giuffre’s claim was “inconsistent” with the recollection of one victim, who did “not recall ever being told to have sex with any men other than Epstein,” and with the separate recollection of another victim, who “did not describe ever being told to have sex with any men other than Epstein.”

The memo also stated that “[n]o other victim has described being expressly directed by either Maxwell or Epstein to engage in sexual activity with any other men.”

The memo went on to identify several other issues that prosecutors had identified with Giuffre’s credibility. Among them were that Giuffre had “engaged in a continuous stream of public interviews about her allegations, many of which have included sensationalized if not demonstrably inaccurate characterizations of her experiences”; that she had written “a partially fictionalized account” of her experience with Epstein and Maxwell; that her own account in an interview with FBI agents had been “internally inconsistent”; and that she had “admitted to lying about her employment history on her resume, admitted to burning handwritten notes that she had made about her experiences with Epstein and Maxwell, and admitted that she inaccurately told a reporter that she was abused by Epstein for four years when she was only with him for about two years.” (Giuffre died by suicide last year; in a statement at the time, her family called her “a fierce warrior in the fight against sexual abuse and sex trafficking.”)

The prosecutors’ findings are consistent with what other media outlets have reported based on their review of the files to date.

The Associated Press, for instance, concluded that the FBI “collected ample proof that Jeffrey Epstein sexually abused underage girls but found scant evidence the well-connected financier led a sex trafficking ring serving powerful men.”

Law enforcement did not simply turn a blind eye to potential misconduct by men in Epstein’s circle. As The Wall Street Journal noted, prosecutors probed allegations of sexual assault made against billionaire Leon Black and the former banking executive Jes Staley and ultimately referred them to state law enforcement authorities.

That is likely because the victims were adults at the time of the alleged offenses, and as the FBI explains on its website, when the charges involve the potential sex trafficking of adults, the government has to prove that the victim engaged in “commercial sex acts” as a result of fraud, force or coercion. (That showing is not necessary when the case involves a minor.) That particular evidence appears to have been lacking in those cases, and as a result, prosecutors evidently concluded that the most relevant possible offenses would be crimes like rape, which are handled at the state level, though charges were never filed.

For its part, The New York Times pointed to some limits of the prosecutors’ work, including that they “did not aggressively pursue other potential avenues, such as how Mr. Epstein moved his money through banks around the world,” and that they “did not interview any of the men who were Mr. Epstein’s main financial sponsors.”

It is always possible that this effort could have turned up evidence of criminal misconduct, but the media and lay people often overestimate how easy it is to conduct a “follow-the-money” investigation — particularly given our increasingly fractured international banking system — and how likely such an effort is to produce chargeable criminal cases given the actual scope and elements of our federal financial fraud and money laundering statutes.

Federal investigators and prosecutors have to make cost-benefit decisions like this regularly in large, complex criminal investigations. The Justice Department does not have limitless resources, and it is always possible for them to miss something in good faith. Prosecutors also have competing demands — including other sex crime investigations and cases involving other victims — and have to grapple with the very real opportunity costs of investing their limited time and energy in one case as opposed to others.

You are free to criticize how they balanced those competing priorities, but in the absence of demonstrable malfeasance or ineptitude on the part of the prosecutors and agents, those would seem to be the terms of the debate — not an elaborate cover-up scheme. Congress could subpoena the prosecutors and agents who worked on the case to answer these sorts of questions — and others about whether certain people were investigated and, if so, why they were not charged — but no one in Congress seems interested in doing this, and in any event, this would require the Justice Department’s cooperation. That seems unlikely for a variety of reasons, including that the Trump administration fired one of those prosecutors last year, in her view because she is the daughter of former FBI Director James Comey.

The one undeniable conclusion from this very sad saga is that we should significantly increase funding of federal law enforcement efforts to combat sex crimes involving both minor and adult victims. But as the Epstein frenzy continues to unfold, few in Washington seem interested in having that conversation.

All of this is deeply unsatisfying, particularly for the women who were so horribly abused by Epstein and Maxwell.

As other observers have noted, the desire for more legal accountability for Epstein’s sex crimes is perfectly understandable, but these are difficult cases to investigate and prosecute in the ordinary course, and the passage of time and the onslaught of political activity, political opportunism and public commentary do not help.

Even if the Justice Department were somehow to reverse course and charge someone new — perhaps some Democrats, as Trump has proposed — the defense would have an argument based on the department’s own prior statements that the case was not brought on the merits but was contrived in order to satisfy the public’s desire to see someone else go to prison for Epstein’s crimes. The argument would be particularly potent if the evidence in the case was based on information that was already in the government’s possession at the time of the release.

Meanwhile, serious questions remain about whether the Trump administration is covering up information in the documents pertaining to the president. That was the focus of Washington last summer, but it has at times been overtaken by a more provocative claim — that there is a sprawling, bipartisan “Epstein class” of people who, in the words of Khanna, traveled to a “rape island, where rich and powerful men were abusing young girls with impunity,” and who would be revealed to the public once the documents became public.

The fight over the documents is still ongoing, but having come this far, I was curious to know how Massie and Khanna, the co-sponsors of the law requiring release of the files, were now thinking about the matter. I posed a series of questions to them over email, including asking who (if anyone) they thought should be investigated or prosecuted based on their office’s review of the files to date. The answers should underscore the very high bar that remains for future Epstein-related prosecutions in the United States.

A representative for Massie directed me to a video in which Massie said on the House floor that the Justice Department should “investigate and hold accountable” well-known figures and onetime Epstein associates like Black, Staley and former Victoria’s Secret CEO Leslie Wexner. The Justice Department appears to have investigated allegations against all three men under federal law — and the Manhattan District Attorney’s office appears to have reviewed allegations of sexual assault against Black and Staley — though it is conceivable that law enforcement authorities did not investigate them aggressively enough. Wexner, for his part, denied knowledge of any wrongdoing in a deposition last month before the House Oversight Committee.

Khanna, meanwhile, declined to offer any names, saying, “Any determination about prosecution must be based on a full review of all available evidence and by legal processes.” (On the House floor last month, Khanna named “six wealthy, powerful men” that he claimed that the DOJ was “covering up for,” but he later acknowledged that four of those people had no connection to Epstein.)

Among other things, I also asked Khanna who he was referring to in a recent podcast interview when he described unnamed men who had “raped girls” and “showed up at parties where girls — 15, 14 — were paraded naked.” He said those names could not be provided because the records were too heavily redacted by the Justice Department. He also said that the victims’ lawyers know many names, but if that is the case, it is unclear why they need the government's investigative material to provide them.

Khanna has sometimes referenced an FBI email suggesting there were 10 potential co-conspirators, and when I asked about it, he said, “the question remains on why were these individuals not charged or investigated further.” I would note this possible answer: Perhaps because the email in question — an apparently isolated exchange between two FBI agents — was not a formal determination of anyone’s alleged culpability, nor could it be, since that is a question for prosecutors to decide based on the facts and the law before they file charges in court. Indeed, the fact that the FBI had other potential co-conspirators within their sight suggests that they considered charging other people but ultimately decided not to do so after doing more digging. By itself, this is not evidence of a cover-up; it is arguably the exact opposite.

Finally, I asked Khanna what he meant when he said that “there are a lot of rich and powerful people who were involved with a pedophile.” He said he was referring to the fact that many prominent people continued to associate with Epstein “even after he was a convicted sex offender in 2008 — visiting his homes, attending gatherings, maintaining social relationships with him, and doing business.”

Khanna is not wrong to criticize the DOJ’s redaction efforts, which have been sloppy, inconsistent and even harmful to some victims by publishing their identities. But it is also clear that regardless of the millions of documents that are produced, many people will never be satisfied. And now the goalposts are moving.

Much of the public discussion has shifted conspicuously away from identifying people who actually perpetrated sex crimes with Epstein to questions about whether prominent people should have socialized with Epstein after his 2008 conviction.

That is a perfectly reasonable discussion to have, and people are free to reach their own conclusions about the appropriate professional and reputational repercussions. But it is not the discussion we were originally supposed to have, and it is not a discussion about who actually participated in an international child sex-trafficking operation.