Public discourse of criminal investigations

Dear Readers, The United States’ criminal justice system has long been the envy of the world.  We are the “gold standard” of what is right and just.  Everyone is supposed to be treated fairly under the law and no one is above the law.  We have constitutional and court rules prohibiting the government from “rolling” someone. 

Due process and fairness are the hallmarks of the criminal process.  Constitutional rights prevent the innocent from going to jail.  Convicting someone is intentionally made extremely difficult for prosecuting attorneys.

Donald Trump has made a mockery of it.  He was indicted because he felt the law did not apply to him.  He pardons his friends and supporters without regard to whether a jury has found them guilty.  Pardons are supposed to correct for past mistakes, not protect friends or families.  Joe Biden (and Bill Clinton before)  can share some of the blame for debasing the pardon process.  President Trump has removed all guardrails.

What is going on with the “Epstein files” proves the truth of this thesis.  Because President Trump treats the Justice Department like his personal law firm, as opposed to attorneys doing the people’s work, he uses it as a political tool.  Now, he says he has ordered Pam Bondi to seek the release of Grand Jury testimony from Jeffrey Epstein’s indictment. 

Criminal cases are investigated in secret.  The work of investigators is shielded from public view until after a conviction.  Ghislaine Maxwell was convicted of being a co-conspirator in Epstein’s sexual exploitation of teenagers.  She is still appealing her conviction.  If she wins a new trial, presumably she will be retried by the government.  Disclosure of the contents of the DOJ’s file, putting the evidence in the public domain, would taint a potential jury pool.  Hence, we do not (and should not) have access to it.  

Further, privacy of non-defendants is protected.  Unindicted individuals, even when an indictment is obtained, are protected by calling co-conspirators “Individual X” in some of the indictments concerning President Trump.  You do not want reputations being ruined by publicly damning without charges.  James Comey violated DOJ policy by publicly commenting (and criticizing) Hilary Clinton’s “email investigation.” 

Victims have rights too.  Identities are protected by referring to them as, say, “Jane Doe,” particularly in an emotionally charged child sex trafficking case.  They have the personal privilege of identifying themselves (like E. Jean Carroll) as opposed to being “outed” by the government.

When we have questions about federal criminal investigations, the proper forum for exploring them is during Congressional oversight or Inspector General investigations.  Hearings can be closed to the public, but a report can be released of a committee’s or IG’s findings.  

Epstein consorted with rich and powerful people, who may or may not have been aware of his criminality.  Alex Acosta’s suspicious 2008 non-prosecution memo raises eyebrows.  Epstein’s purported suicide was awfully convenient for many – let Congress do its thing!  There are valid questions – they are not answered by dumping everything into the public.

Grand juries are conducted in secret.  For example, if one issues an indictment, the “True Bill” passes to a judge to review and approve it before it is made public.  The Grand Jury testimony (unless it was convened as an “investigatory” one) leading to an indictment is very narrow and is unlikely to add to the public domain.

Grand Jury transcripts are sealed by law; a judge has to approve that they be made public on very limited grounds.  Hence, President Trump misleads his constituents, suggesting he can order Pam Bondi to release transcripts; she can motion the judge to do so.  These types of motions are only filed if there is compelling justice reason to do so, not because a President ordered an Attorney General to do so, particularly where this testimony will not advance answers to our questions!

For a lawyer, the law is sacrosanct.  It is not the plaything of a President.  You do not order DOJ to investigate people, like members of the House Special Committee investigating the 2016 Election, merely because you perceive them as your enemy.  You also do not expose citizens to public embarrassment by having their names attached to a sordid sex-trafficking case, without being charged.

Years have been spent calling for the release of the “Epstein files.”  They were generated by DOJ during the first Trump Administration, and then ginned up as a conspiracy meant to undermine Joe Biden.  Pumping us this conspiracy was wrong.  This sin is compounded by politicizing the DOJ.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.