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The Loophole That Could Keep the Epstein Files Hidden
00:44:13
The DOJ must release its Epstein files by December 19th. But loopholes in the law may leave the most revealing material hidden.
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- [00:01]
A
We've been working with this great new sponsor here at Question Everything. It's called Plaud. That's P as in pancake P L A U D Plod. It's this nifty tiny AI assistant and notetaker device that you can turn on and it listens to any conversation you're having and then uses AI to create to do lists or action items or to synthesize different things. We've actually turned the word plodding into a verb around the office. So we'll start a meeting and I'll say I'm going to Plaud. This really just frees your brain from note taking, remembering menial things. If you're interested, go check out plaudplaud AI and if you get one, use the special code Question. It helps out the show.
- [00:45]
B
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- [01:21]
A
Growing up, I loved Advent calendars, counting down to Christmas Day. Behind each door, a delicate piece of chocolate. But the date I'm counting down to this season isn't December 25th. It's December 19th, next Friday, and behind that door is a treasure trove of public records, the Epstein files.
- [01:42]
The Justice Department is now mandated to put the files out by next Friday because of the Epstein Files Transparency Act. Congress passed this law nearly unanimously, and President Trump signed it just a couple weeks ago. I'll speak for myself here, but I'm guessing I'm not alone. I have a bad feeling that we will not get the full transparency this act promises. I'm worried that the Justice Department may come up with justifications to ignore the deadline. Or they may release material that's already been out there through court cases. Or they'll release stuff that's heavily redacted, lots of key information blacked out. After all, Donald Trump has had the power since he took office to release the Epstein files. He didn't need Congress to pass a law to do that. We know he's in the files, as are many other powerful people. I became especially worried about the administration pulling some hanky panky here after I learned about a special redaction project. That's what it was called internally that, that the FBI ran all the way back in the spring with hundreds of agents working round the clock to go through and do God knows what to the Epstein files. Today on our show, we hear the reporter who discovered that redaction operation by shrewdly fashioning public records requests, along with his trusty First Amendment attorney.
- [02:59]
C
So this is like a. This is like a meta request, right? Like you're. You're trying to get. It's a foia.
- [03:04]
A
About a foia, yes, From KCRW and Placement Theory. I'm Brian Reed. Stick around.
- [03:17]
Okay. So I've been telling you about this sponsor we're working with, Plaud. That's P as in pancake. P, L, A U, D. It's this nifty, tiny AI assistant and notetaker device. Though it's much more than that. You turn it on, it can record a meeting, interview, or just you talking to it and dumping the contents of your brain into it. Just. Just in the last few weeks, I've been introducing it to my wife, and I shit you not. Just this morning. She and I were just catching up after dropping our kid off at school about things we have to get done this week. We have a really busy week. And she said, hey, can you plod this? It just showed like, actually, this is becoming part of our life and it's actually really useful. Check out Plaudplaud AI if you buy one, please use the special code. Question.
- [04:04]
A friend recently asked me how important the fight to release the Epstein files felt to me. He said he felt very cynical about it, and I told him I do too, sometimes. Because it's often hard to believe any information, no matter how damning, can have an impact these days. But then I remind myself that lots of Epstein's survivors, they desperately want the files released. Some voted for Trump based on that promise. And when I think about that, this transparency feels very important. As the Epstein deadline approaches, I've had a bunch of questions about public records law basically circling in my head. What information can the government legally withhold from the Epstein files? What can they redact? For instance, I understand that identifying information about survivors can be withheld or redacted. And the same for information about an ongoing investigation. Which makes sense. But how can reporters and the public make sure those exemptions aren't abused to keep other important info locked down? Plus, what do we even know is in the Epstein files? As I chewed on these questions, preparing myself for what might happen or fail to happen when the deadline Hits next week. The person I immediately wanted to call was Jason Leopold. Jason's an investigative reporter at Bloomberg News. I know him as the FOIA guy, Freedom of Information Act. He's an expert on using FOIA to get sensitive files from the government, from CIA torture memos to evidence of abuses at Guantanamo, to Hillary Clinton's emails, to documents related to Jeffrey Epstein. He often ends up suing the government to get this information. One official once called Jason a FOIA terrorist. When we reached out to Jason to see if he would come on the show to talk about the Epstein file release, his team mentioned that actually they had just put together an episode of his podcast Disclosure that answered basically all my questions. They sent me an early copy and they were right. The show is hosted by Jason.
- [06:01]
D
I'm investigative journalist Jason Leopold. I spend most of my days getting.
- [06:04]
A
Documents from the government and Jason's First Amendment attorney, Matt Topic.
- [06:09]
C
I'm attorney Matt Topic and I fight them in court to open their files when they don't want to.
- [06:14]
A
This episode just came out and I want to share it with you here. Thanks to Bloomberg and no smiling, who produced the show for letting us do that, because not only does it help you brace yourself for the different scenarios that could happen next week, it also gets into the nitty gritty process stuff I love of how FOIA works and the procedural jujitsu you can use to pry open FBI records. Here are Matt and Jason.
- [06:37]
D
So, Matt, when we say Epstein files, what are we actually talking about? This is a guy who was investigated by federal authorities starting around the mid 2000s. He signed a controversial plea deal and did some light prison time. And then he was arrested again in 2019 and accused of sex trafficking minors. And the idea is that those investigations threw up a lot of paperwork, presumably about interviews with victims, evidence, names of associates and co conspirators. So now with the Epstein files transparency act, there's going to be a lot of discussion of what gets released and what may get withheld. So the point of this, Matt, is that over the past year, I've been doing some document requests and following some other FOIA actions related to Epstein. And it all helps us get a handle on what's in the Epstein files and how the government has been handling them. And as you know, Matt, this has been building since Trump took office again in January. A lot of Trump supporters want this information out in the public, and Trump seemed to say during the campaign that he'd do that. But by the summer, that was looking less likely. So in July, the Justice Department and FBI released a joint statement that said it is the determination of the Department of Justice and the Federal Bureau of Investigation that no further disclosure would be appropriate or warranted.
- [07:58]
C
Cue the outrage. Yeah, right. I mean, there are a lot of people for whom this is the most important issue in American politics right now. Well, and you're just telling them, yeah, nah, we changed our mind, there's nothing to see here. Move on.
- [08:14]
D
Yeah. And this is the biggest political story of the year. So earlier this year, I filed a wide ranging FOIA request for everything related to the processing of the Epstein files. I was really interested in how the records were processed and I was even more interested within the context of how everything went down with the rollout of the Epstein files earlier this year. What I was hoping was to get a look at what was going on behind closed doors with the Epstein records going back to the beginning of the new administration. And remember, Matt, just a few weeks after Trump was inaugurated back in February, his brand new Attorney General, Pam Bondi calls a group of right wing influencers to the White House for an event because she has something to give them. They walked out of the White House holding binders and hands them binders. Look at what we got today that say Epstein files phase one. See that right there, that's the Epstein files. Bondi has this kind of grand rollout. And so shortly thereafter, I mean, I want to say more like almost immediately thereafter, the MAGA crowd goes nuts. We frankly assumed this had at least some smoking guns.
- [09:23]
C
And now it's a backlash.
- [09:25]
B
That's not what's in this binder at all.
- [09:27]
D
It's a backlash against Bondi, it's a backlash against the FBI.
- [09:30]
C
It is the biggest disappointment, I think.
- [09:32]
D
That you'll find because it turns out that these documents that were in the binder had been previously released in court cases and previously released by the FBI. So it ignited a firestorm.
- [09:50]
C
This is kind of their own folks, right? They invite all these people that are kind of from the MAGA world and do they think they're so stupid that they're not gonna realize that these documents have already been out to, out there? I mean, of course folks are going to pick over every document and like I, was this just incompetence or was it, did they, were they trying to pull a fast one or.
- [10:12]
D
Well, I don't think they actually pulled a fast one. I, I don't, I just don't think they actually even looked at any of the files they were going to release. And so what happened after that is Bondi, who had been really embarrassed by this, fires off a letter.
- [10:29]
E
In a letter to FBI Director Kash Patel, the AG demanding the release of the Bureau's full and complete Epstein files.
- [10:36]
C
So she's throwing Cash Patel kind of under the bus here, like, hey, what are you guys doing? This stuff has already been released.
- [10:43]
D
Exactly. And she kind of blamed him for this. She says, I repeatedly questioned whether this was the full set of documents responsive to my request. And as she later explains on Fox.
- [10:55]
E
News, you're looking at these documents going, these aren't all the Epstein files.
- [10:59]
D
Bondi's letter to Patel goes on to say that she knows there are more Epstein documents. She writes, she has a source in the FBI field office in New York who told her so.
- [11:10]
E
And so a source said, whoa, all this evidence is sitting in the Southern District of New York, Shock.
- [11:16]
D
So she then tells Kash Patel that he has until February 28th to have the FBI deliver the full and complete Epstein files to her office.
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E
And we got hopefully all of them Friday at 8am Thousands of pages of documents.
- [11:32]
D
And she goes on to say that she wants a full investigation as to why her order to the FBI originally wasn't followed.
- [11:42]
E
Cash is going to get me and himself really a detailed report as to why all these documents and evidence had been withheld. And, you know, we're going to go through it, go through it as fast as we can.
- [11:54]
D
So, Matt, as you know, I actually asked for that detailed report, but they withheld it under a FOIA exemption. But as I reported earlier this year for Bloomberg, after all this happens, Cash Patel directs FBI agents from the New York field office, the Washington, D.C. field office, and personnel from the Records Information Dissemination Section, or rids. Those are the folks that process FOIA requests. And they were all holed up in, in a facility in Virginia which is called the Central Records Complex. So what do I mean by processing? Well, when reviewing documents for eventual release, FOIA officers have to determine what can be released and what needs to be withheld using nine exemptions under the foia, for example, they would withhold information based on someone's personal privacy or an ongoing investigation. And they begin processing these Epstein files, right? They're, they're, they're pulling all nighters. They're, you know, working 20 hour shifts just to process the Epstein files. So I was really interested in what was taking place behind the scenes, you know, how these requests were processed, how much money they spent on FBI personnel.
- [13:09]
C
So this is like a, this is like a meta request, right? Like you're, you're trying to get. It's a foia. About a foia.
- [13:15]
D
Yes.
- [13:16]
C
So most agencies, as they're processing requests, they have some kind of a database that they keep track of all the steps received, request forwarded to analyst, analyst ran search 42,000 search results narrowed with search terms, sent extension letter to request. Like all those little details from a lot of agencies get tracked in some kind of a centralized database. And we usually refer to those as processing notes.
- [13:44]
D
And that's informative because you sort of learn how these requests are processed and maybe even, you know, learn about a record keeping system. So I find that to be good information to get insight into how the agency is handling a FOIA request.
- [14:03]
C
It kind of reminds me of like the updates or texts I get from United Airlines about what's going on with my checked bag. Like, it'll say like if you. It's like screening, he's been loaded onto the plane. It's like it's on the cart, you know. Yeah, but way more detailed than that.
- [14:22]
D
So I filed multiple FOIA requests over the summer and then Bloomberg sued to compel the release of these records. And recently the FBI released about 60 pages of emails and other documents I asked for related to the processing of the Epstein files.
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C
So what do you got?
- [14:44]
D
We have a bunch of emails and they're kind of heavily redacted, but there is still a lot of info in here and there's some real interesting takeaways here.
- [14:55]
C
So let's go through the timeline here. So where does the story of the emails begin?
- [15:00]
D
It begins in March, early March 2025 this year. There's an email here from the Assistant Director of the Information Management division. It's dated March 10 and it says that we are prepared to receive boxes tomorrow as New York agents are traveling to the Washington Field office in the morning and will arrive to Winchester. That's the location of the central records complex where they will start photographing and we will start scanning and processing the physical files. Why do you think that they were photographing the files?
- [15:45]
C
Well, that's interesting because, like regular paper documents, you would think they would just scan them, you wouldn't need to photograph them. It suggests that potentially there's some things that aren't like documents. Like there could be physical evidence, right? There could be a.
- [16:04]
D
Right.
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C
It could be anything. It could be a beer bottle, it could be a hairbrush, you know, whatever. They might be taking photos of those physical items that you can't scan. But we're just kind of guessing at that, at least for Now, Yeah.
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D
The email goes on to say, once I see the volume, I'll have a better estimate of processing times. Although I suggest we do a rolling delivery to further demonstrate the FBI's commitment to delivery and transparency.
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C
Yeah, interesting.
- [16:36]
D
I mean, I think that's just funny because the FBI wants to demonstrate to the DOJ its commitment to transparency. It also says, by the way, in this email, and again, this very early is March 10th. So it says that, you know, in a meeting with the criminal division in New York and Washington field offices, there were questions on the types of redactions the FBI should apply to these files. And then there's like, just a really long redaction box.
- [17:05]
C
So do we know anything from these emails about, like, what kinds of records the FBI was reviewing?
- [17:12]
D
Oh, yeah, yeah. I mean, we do. And it's. It's kind of fascinating. So on one page, they're discussing FBI search warrant execution photos, FBI interview videos, Ghislaine Maxwell's prison security footage, time lapsed video footage from an office. And in parentheses, it says, no persons identified and no crimes observed. Street surveillance footage, aerial footage from FBI search warrant execution police interview videos.
- [17:44]
C
And you're just salivating, seeing. You're like, oh, man. Oh, yeah, I got to get this.
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D
Stuff and marketing videos.
- [17:51]
C
Marketing videos.
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D
Marketing videos. I mean, this is.
- [17:54]
C
What's.
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D
This is what's identified here.
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C
Do we know?
- [17:57]
D
I don't.
- [17:59]
C
Marketing videos.
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D
Yeah, it's. It's.
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C
Is that like. Is that Mr. Epstein's like, come visit my island kind of marketing videos?
- [18:08]
D
I don't know. I mean, I'm trying to figure out what. Marketing videos?
- [18:12]
A
Yeah.
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D
Oh, actually, the other thing that's here is they're discussing the prison video of Epstein before he was found dead and after he was found dead. And they discussed this video and 8 terabytes of data related to Epstein. So that is something that they were looking at as well.
- [18:31]
C
So do these documents tell us anything about sort of the interactions between FBI and doj? Because, like, you know, this is a little bit of a tense. This is after the binders that really weren't anything new. Right. So, like, you got a little bit of a awkward relationship between the FBI and the doj. Are they communicating with each other at all here?
- [18:52]
D
Great question. I mean, in these records, it does not appear that they're communicating. And in fact, there's one email that asks the question of, did you happen to send the results of the below review to DOJ at any point? And the response is, we definitely did not provide anything to doj. Just to HQ headquarters. So it doesn't appear. And this just may be the fact that it's early, at least in these documents, that the FBI release that there's no communication with doj. But I also want to note that the FBI did withhold 160 pages in its entirety.
- [19:35]
C
Okay. So not a ton about the DOJ FBI relationship. So did we learn anything about like, did they do this in phases? Like, how did they structure the processing? Yeah, I see reference to like phase one and phase two.
- [19:50]
D
Yeah. And so another document here, you know, again, this is all in. In March. And I think what's noteworthy is the bulk of the work was taking place in March. You know, almost a thousand FBI agents and personnel working during the month of March just plowing through these records. You know, there's an email on Sunday, March 23, 2025, 6:43pm so you can already see that they're working on the weekends. Right. Standby. We have identified more files requiring PH review. Please continue to refresh as files will be populated momentarily.
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C
So do we know anything about what those phases mean?
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D
No, unfortunately, the documents don't describe what. What those phases refer to, what it.
- [20:40]
C
Actually means, and it looks like. So then upon completion of phase two, the FBI is going to provide what they call see through redaction files for DOJ review, which to me reads like FBI is doing the work of identifying what to redact, but they're giving it to doj. So DOJ can see what the plan is. Is that how you read that?
- [21:00]
D
That's how exactly how I read that.
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C
So, Jason, in March, they're doing all this processing. So what's the next kind of big thing that happens?
- [21:10]
D
Well, the next big thing, at least according to these emails, is April 15, tax day. An email goes out to FBI personnel that says, kash Patel, quote, asked for status of all remaining Epstein related reviews.
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A
Makes sense.
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D
Yeah, it makes sense, but there's no response to that email. But Patel is weighing in.
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A
Right.
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D
The director of the FBI wants an update. Where are we at, you know, with the Epstein files?
- [21:37]
C
So when do they finish the review?
- [21:39]
D
So it appears around May 2nd is when. When they kind of wrap things up. An FBI employee from the New York field office sends an email and attached a document titled Epstein Overview Final that summarized their work.
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A
Well, do we.
- [21:56]
C
What is. What does it say?
- [21:58]
D
Unfortunately, you know, the FBI withheld the attachment.
- [22:03]
C
No.
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D
So they withheld those attachments, citing a number of different FOIA exemptions, such as attorney client privilege, the deliberative process. And so they're taunting you.
- [22:16]
C
They're taunting you by telling you what. What's there, but that you can't have it.
- [22:19]
D
Can. Can I tell you that as I'm reading these files and the subject lines refer to a PowerPoint or a document, I'm, like, clicking. I'm clicking to see if there's any chance that, like, it will magically open up.
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C
Any luck?
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D
It did not. It did not.
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A
Bummer.
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D
But importantly to me, like, this is the biggest standout on these records. So I asked how much money they spen overtime, for example, for agents who are tasked with processing these records. So go to page 14 of the release.
- [22:54]
C
Okay, so I'm looking at a. It's a chart, and then the division name column says Business Strategy and Analytics Section. Counterintelligence Division. Counterterrorism Division. Criminal Investigative Division. Cyber Division, Directorate of Intelligence, EAD Information and Technology Branch. Finance and Facilities Division, Human Resources Division. And then everything else is withheld for secret investigative techniques that, if released, would harm some future investigations.
- [23:26]
D
So these are all the divisions that were involved in the review of the Epstein files. And how do we know that? Because the government released an index of what I requested, and the FBI document types is how they refer to it. And this is a resource planning office. That's an office within the FBI report that documents the premium pay hours. And premium pay is overtime, nighttime differential hours, but more or less, you could think of it as overtime. And it's the number of hours they recorded on this project. Right. That's how they refer to it. The Epstein files, they refer to it as a special redaction project, and it's during the period of March 17 through March 22. So five, five or six days. Right.
- [24:18]
C
So they're withholding from you the total amount of pay across each of those.
- [24:23]
D
Right.
- [24:24]
C
But they are giving you the grand total of employees worked, premium pay hours, total and premium expenses. So they just. They don't want to give you the breakdown, I guess, on the theory that somehow you could interfere with an investigation if they knew the specifics of how they staffed this up. But you at least know the totals.
- [24:42]
D
Yeah, and those totals are kind of stunning. There were 934 employees that were involved in the processing and review of the Epstein files. 14,278 premium pay hours worked for a total of $851,344 that the FBI spent on premium pay during the March 17 and March 22 review of these files. I mean, that's a lot of money. That seems like a ton of money to me for the FBI to spend on this. I mean, it wasn't a national emergency.
- [25:25]
C
Well, it depends who you ask.
- [25:27]
D
Yeah, true.
- [25:28]
C
I mean, I think there's a sizable number of people and I think they probably are skewing towards Trump supporters for whom like this is like.
- [25:37]
D
Right.
- [25:38]
C
So I'm looking at these numbers, I'm seeing 850,000 and that's just the overtime. So, you know, it's possible that the overtime might only be like maybe half of the total cost. So you could easily be looking at like a couple million dollars total that people are just working, which means they're not in the field investigating crimes. They're not in the office processing Jason's other FOIA requests. Like it's sort of they drop everything. This is what they're doing and all this work gets done. And then Pam Bondi says there's nothing to see here, so nothing more is going to get released. Right. So it sounds like by May 2nd they've pretty much wrapped up. And then in May, DOJ tells Trump that his name appears in the documents.
- [26:24]
D
Yeah, that's the timing of it. And shortly thereafter, you know, we have this unsigned memo saying that they collected 300 gigabytes of data, which is video, photographs, actual documents. And none of that, not a single document from that trove can be released.
- [26:48]
C
All right, well, the clock is ticking on the 30 day Epstein transparency act deadline. So I guess that work wasn't a waste because it's going to probably come in pretty handy pretty quickly. It's a good thing that they already did all this back in the summer. Hopefully we're going to start seeing some more stuff.
- [27:09]
A
Brian here. I hope you're enjoying this. After a quick break, Jason discovers a nearly decade old lawsuit from a defunct magazine that may prove to be a silver bullet for forcing out the Epstein fil.
- [27:28]
All right, so I've been promising you that I was going to share more about this device called Plaude, which we have partnered with here at Question. Everything here is one way I used it. Just in the last couple weeks I had a background conversation with some Senate aides. If you want, I can give a little overview, kind of what we're interested in too. Just to kind of kick it off. I wanted to record it, make sure I had an accurate transcript. They said I could Plaud made an immediate transcript, but then I can go right into my app and it just summarizes it really quickly. There are all these different templates you can use to make sense of it and you can ask it questions and honestly I just find the AI really good. One question I definitely had as a journalist who is, you know, meeting with sources was about Plaud's privacy practices. So I asked the company about this. Plaude complies with a bunch of privacy and security frameworks from around the world for data protection. Includes GDPR and hipaa. I ask if you can control your data as a user of Plaud. You do. You can choose to store the data locally on your device or securely in the encrypted cloud. Give it a whirl. You can search for Plaud P L A U D on Google or Amazon or go to Plaud.
- [28:38]
AI. We have an offer code for you. It's a question.
- [28:49]
D
I want to segue into what may be in the Epstein files. So earlier this year I wrote about the under the radar Freedom of Information act lawsuit that was filed back in, I think it was 2017. It's a nearly nine year old lawsuit that an attorney named Dan Novak filed on behalf of a reporter for what was Radar magazine at the time, this FOIA lawsuit that he filed. They were trying to get at that time all of the FBI's Epstein files. And in this lawsuit that had been going on now for nearly nine years, the FBI released about 1200 pages of documents. And these are the 1200 pages, more or less, that have been screenshotted and shared on social media.
- [29:43]
C
And is this the same stuff that was in the famous binders, the Pam Bondi binders? Exactly where people who've been following this are like, what is this trash? We've already seen this. Right?
- [29:54]
D
That's exactly right. So here's what happened. I dig into this case and the FBI and the Justice Department essentially withheld the vast majority of records, at least 10,000 plus pages because of an ongoing investigation. First I should go back and say they denied the request before they moved to a lawsuit. They said to the reporter that you need to have a privacy waiver. You need to get Epstein to sign a privacy waiver before we turn anything over.
- [30:21]
C
Then he's still alive then in 2017.
- [30:23]
D
Yeah, he's still alive. So they're going down the road of privacy waiver and a privacy exemption. They sue. Right. And so you know how it is. I mean, we both know how it is. If this is dragging out for a while.
- [30:35]
C
But this is really long.
- [30:36]
D
This is really, it's really long. The next thing you know, what happens is fast forwarding here, but Epstein gets arrested. And so now everything is being withheld under B7A. An ongoing law enforcement proceeding. So they're not getting anything. They're still arguing, going back and forth. So these folks just continuously hit roadblocks and roadblocks and roadblocks, and they're just unable to pry anything loose. But they're fighting, they're continuing to fight.
- [31:04]
C
Right.
- [31:04]
D
I respect that.
- [31:05]
C
It's nice to hear you not be mad at other people making FOIA requests and filing lawsuits.
- [31:10]
D
Yeah, I mean, I like when other people file FOIA requests and lawsuits, as long as it's not for the same records. I want fair. So I go into the docket of this FOIA lawsuit that Radar filed, trying to make these Epstein documents public. And on the docket is what's called a Vaughn Index. This specific document is very important as far as the Epstein files are concerned. But before we get into that, Matt, can you explain what a Vaughn Index is and the old FOIA lawsuit that gave rise to it?
- [31:38]
C
Yes, Jason, it comes from a case called Vaughn versus Rosen in, I think, kind of like the 1970s. And what used to happen is agencies would withhold a bunch of stuff and then they would just dump all the documents on the court in the lawsuit and be like, here you go, court. You tell us, like it's called in camera review, like where the court in chambers, not in public, reviews these documents. So agencies were just kind of like, dumping all this stuff, and eventually the courts are like, yeah, we're not cool with that. You've got to make an index of what all these documents are, describe them at least in some level of generality, and identify the specific exemptions that you're claiming for each one of those. So that has become known as a Vaughn Index. So it's, it's what it sounds like. It's a listing of all the documents. And sometimes the Vaughn Index can have a whole lot of interesting information, even if you can't get the documents.
- [32:27]
D
Right. And we've received many Vaughn indices in our foil lawsuits.
- [32:33]
C
Yeah. Routinely.
- [32:35]
D
Yeah. And they're extremely, to me, extremely valuable just to even have a general overview of what the documents are that they're withholding.
- [32:42]
C
So I doubt who's talking to who and when they're talking. Like, even if you don't know what they're saying, it can be really interesting, like, oh, this person was involved, or, huh, that timing is really interesting as to when things were happening. And you can usually get those kinds of details.
- [32:55]
D
Yeah. And I feel like they're newsworthy and you can write a story out of it.
- [32:59]
C
You have written stories out of it.
- [33:00]
D
Oh yeah, I thought this one was really important. And it doesn't seem like anyone, you know, even knew it was out there. It had some pretty damn good detail of what the documents are that the FBI had as it relates to Jeffrey Epstein. And obviously it's a sliver. But what would be in the Epstein files that are now supposed to be released? And the index says that the FBI processed but withheld information it obtained from confidential sources. Letters addressed to then U.S. attorney for the Southern District of Florida, Alex Acosta. He was the one that ultimately authorized that non prosecution agreement with Jeffrey Epstein. Subpoenas to MySpace. Remember MySpace? Oh yeah. That's specifically in this Vaughn Index. The handwritten notes of FBI agents, photographs, grand jury subpoenas.
- [33:53]
C
This is all listed out in the Vaughn Index.
- [33:55]
D
Yeah. And bank records, communications with foreign government agencies. I thought that was really, really interesting. Of course there are 302s. Tell everyone. FBI 302 is FBI.
- [34:08]
C
302 is a summary of FBI interview with someone.
- [34:13]
D
So in this Vaughn Index. So I counted, right, because it describes the 302s here. And mind you, this index relates to the investigation that the Justice Department FBI took on between 2006 and you know, when Epstein pleaded guilty in 2008. So I counted and it reveals that the FBI conducted, at least according to this Vaughn index, 55 interviews with witnesses, victims, potential investigative targets and importantly bank records. So, you know, I'm hoping we get a chance to see those. But here's what I like really zeroed in on is that it shows that some of the documents that were processed and withheld from Radar magazine are from 2011 and include dozens of photographs and agents interview summaries of third parties and documents provided to the FBI by confidential sources.
- [35:13]
C
That's 2011. 2011 when he gets charged in 2019. No.
- [35:18]
D
So we're only talking about the first investigation, right? 2006 through 2008. But it looks like the FBI never really closed it, that it remained active because there's documents from 2011. So I just wanted to get your take on this because we've dealt with the FBI a lot. Do you think that people may have just been coming in and just collecting evidence and submitting it to the investigative file? Or could this be kind of evidence that the FBI still had an active investigation in 2011, three years after Epstein had pled guilty and at that point was already out of jail?
- [35:54]
C
I mean that's pretty hard to tell. I mean, wouldn't surprise me if victims and others continued to come to the FBI, for good reason, dissatisfied with the minimal punishment that he had gotten to that point in. Whether the FBI did anything with that, we really don't know. Unless the Vaughn Index shows, like, more activity at the time. But if all you have is, like a listing of a bunch of three or twos of witness interviews, that it's hard to really say if they were actively investigating or just sort of passively receiving information.
- [36:24]
D
Right. Yeah. And based on my reporting, the FBI doesn't typically close investigations. They're sort of keeping it open. That's just my experience.
- [36:31]
C
That would make sense.
- [36:32]
D
Right.
- [36:32]
C
For in these circumstances, that would make perfect sense.
- [36:36]
D
Yeah. And I didn't see anything in the Vaughn Index that indicated there was, like a case closing memorandum, an actual document there. So I dug into this over the summer. This was during that time where the. Where everyone was just kind of clamoring these Epstein files. Because this. This was immediately after the Justice Department FBI said, we're not going to release anything. So now Radar magazine is eight years into its lawsuit to get the Epstein records. At this point, they know the FBI has reviewed the records, and the FBI and the DOJ say they're not going to release more records. So the Radar lawsuit has some new urgency. It looks like they have a pretty clear path to say you have to release the records. But then Ghislaine Maxwell appeals her case.
- [37:23]
C
Ghislaine Maxwell, we now see that her.
- [37:25]
D
Attorney renewing his request for the Supreme Court to overturn her conviction. So there's Radar magazine again with like, oh, man, this is still, you know, an ongoing law enforcement proceeding, so they still can't get anything. And now that the Supreme Court has rejected Maxwell's petition, Dan Novak. And Radar magazine has now appealed to the 2nd Circuit. And so there's an oral argument set for January 28th. So I still think. Matt, I just want to see what you think this FOIA case is the best, actually the best chance of getting anything from The Epstein Files vs Congress's Epstein Files Transparency Act.
- [38:04]
C
Yeah, I think for a couple reasons. I mean, first, I think that the Vaughn Index is going to be a check on whatever gets released. Like, if you see that there's things on the Vaughn Index that don't get released, then there's some splaining to do. Right. But the lawsuit also has teeth. The Epstein act has no teeth. If DOJ decides to violate it, there's no private cause of action. You and I can't file a lawsuit over that. You need to have a FOIA case. And so that case could end up being the legal vehicle by which the Epstein act release actually gets challenged. I mean, there's so many twists and turns to this and like, people get charged and people die, and it impacts what can be withheld or not. And it's up and down on appeal and all this stuff going on. And so that's got to be frustrating to go on for that long. But now it's, it's, it's, it almost turns out. It does turn out that, like, it's great, right?
- [39:01]
D
Exactly.
- [39:01]
C
There is a live active FOIA case right now that can be the vehicle by which, if the DOJ is trying to get away with withholding things, that's how they can be held accountable for that and how we can. Courts can guarantee in the public can guarantee that they're actually releasing everything that they're supposed to release because the track record ain't that great so far.
- [39:21]
D
That's kind of how I felt as well, is like this is really the best course of action for the public to kind of see what's going on. It will be interesting if the government argues that, well, Donald Trump has now called for an investigation into Democrats. So we're going to keep withholding this because of an ongoing investigation.
- [39:44]
C
Yeah, and that's, you know, I mean, it depends on how bold they are on trying to make those withholdings. And I think they're given the memo from July. If I was representing you right now in a case on this, and they said, oh, well, there's these investigations. I think you can make the argument that that's a sham. They already said that there isn't any predicate to investigate anybody else.
- [40:06]
D
That's right. And DOJ and FBI said in their joint statement from July, quote, there was also no credible evidence found that Epstein blackmailed prominent individuals as part of his actions. We did not uncover evidence that could predicate an investigation against uncharged third party.
- [40:28]
C
So the fact that they're now claiming they're going to do investigation, it's not a real investigation, so it doesn't count for FOIA purposes. That's how I would argue it. I don't know. Some, you know, I think there's a fair chance of succeeding on that, but no, no guarantees.
- [40:41]
D
I mean, the timing couldn't be better for Radar magazine. Right. They filed this back in 2017, so they're coming up on nine years. That's a really long time. But, man, the fact that they're still fighting at this very moment, where the Epstein files have become the biggest political story of the Year. That's wild. So, as I mentioned, there's a hearing in the 2nd Circuit, an oral argument, that's scheduled for January 28th.
- [41:11]
C
And let me just, let me just explain. So that's the court of appeals that covers the trial courts that are in New York and some other adjacent states. The country is divided into a series of different regional courts of appeal. So it's above the trial court and it's before the Supreme Court.
- [41:28]
D
An oral argument. Explain it, Matt.
- [41:30]
C
Oral argument is the parties have filed their briefs and then they come in and they answer the judge's questions and they make their arguments. And those are open to the public. I got a feeling that's going to be a packed courtroom with overflow rooms.
- [41:43]
D
Yeah. And it's interesting because it's coming, you know, it's happening right after kind of the deadline for when the Justice Department is supposed to turn over everything in the Epstein file. So I just want to ask you this question, Matt. So let's say the Justice Department does turn over everything in the Epstein files to Congress as, as they are required to do under the law. Would those same records be responsive to this FOIA lawsuit?
- [42:14]
C
Well, the scope of that request was like all records from the FBI's investigation. Right. All documents relating to the FBI's investigation and prosecution of Jeffrey Epstein. Now, they made the request in 2017. There could be a dispute about whether documents after that date get included or not. I mean, it certainly would be cut off at whatever point the FBI searched then. That would typically be the cutoff. Sometimes it's the date of the request, sometimes it's whenever they do the search. So there could be some later stuff like, you know, because he. When did he, when did he die? 2019.
- [42:51]
D
2019.
- [42:52]
A
Yeah.
- [42:52]
C
So there's a couple years there, 2019. There may be a little bit of a delta.
- [42:56]
D
Well, I guess we'll see what happens whether or not the Justice Department releases the Epstein files to Congress. And I guess we'll see what happens in late January in the radar FOIA lawsuit for the FBI's files in Epstein.
- [43:13]
A
That was Jason Leopold and Matt Topic, the hosts of the podcast Disclosure for Bloomberg. And no smiling. You should definitely check out Disclosure at Apple Podcasts, Spotify, or you know the drill. Wherever you get your podcasts. There's more there about Jason Zepstein reporting. And also the story of the so called doge kids, a group of like 4 or 520 somethings with no experience working in government who went into USAID and started firing and dismantling the entire agency that's been around for decades. Fascinating stuff. Disclosure is produced by Heather Schroing and Sean Cannon for no Smiling. The Bloomberg editor is Jeff Grocott. The executive producers for Bloomberg are Sage Bowman and Jason Leopold. The executive producers for no Smiling are Sean Cannon, Heather Schroing and Matt. Topic the Disclosure theme song is by Nick, with additional music by Nick and Epidemic Sound. Sound design and mixing by Sean Cannon. Question Everything's Managing editor is Kevin Sullivan. Our executive producers are me and Robin Simeon. Associate production this week by Emma Grillo. Our fact checker is Annika Robbins and mixer and sound designer is Brendan Baker. Join us next week for another episode of Question Everything where we go deep into my favorite topic. I'm back on my bullshit section 230. We're going to tell you the story of how this law got created in the early days of the Internet and talk to someone who disagrees pretty strongly with my view that it needs to be revamped. See you then.
- [44:43]
B
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