Here is the column:
There are few characters more repellent than the late Jeffrey Epstein. His life left a line of human wreckage and misery. Those associated with Epstein have also faced public backlash and recriminations throughout the years.
Recently, however, the Epstein scandal took a new turn. Due to unprecedented access to once-sealed material, the public is now combing through emails, appointment books, and photos with a voracious interest in his private associations and contacts. Most of these people are not accused of any criminal conduct, mind you — just notorious association.
The result has been the humiliation and condemnation of various individuals revealed in the files.
The question is whether we should consider the implications of such transparency and how it can expose those who are not accused of any crime.
During our colonial period, public shaming was a common form of punishment. Back then, bilboes, brands, and branks were some of the devices used to punish the notorious amongst us.
That has been the fate of notable figures whose names have popped up in the new disclosures, ranging from former Obama White House Counsel Kathryn Ruemmler to former Harvard President Larry Summers to Sweden’s Princess Sofia.
The irregular intervention of Congress negated core protections afforded to collateral figures scooped up in criminal investigations. That includes some material previously protected under Rule 6(e) of the Federal Rules of Criminal Procedure.
At the same time, members are releasing material subpoenaed from other sources in earlier congressional investigations. This includes a picture of Donald Trump, from before he became president, that was released by Democratic members this week. The picture with six women has the faces of the women dramatically blocked out as “potential” victims of Epstein.
The implication and the intent of the picture’s release are equally obvious: to suggest that Trump was cavorting with possible victims of human trafficking with Epstein. Another photo shows Trump sitting with a woman with her face blacked out. These pictures were released with other images of sex toys from the Epstein files, and a novelty box of Trump condoms that say “I’m huuuuge.”
Another previously public picture shows Harvard law professor Alan Dershowitz simply talking to Epstein, who is wearing a Harvard sweater. Epstein was a donor to Harvard, and the photo could have been taken anywhere. However, it was released (again) alongside images of sex toys, Epstein in a bathtub, and a blacked-out picture of “possible victims.”
The releases have proven devastating for some. Summers left his teaching position at Harvard and a leading economics association after his communications to Epstein were made public. They included Summers allegedly seeking advice on how to seduce a young research associate as well as other communications that are sexist and offensive toward women.
Ruemmler has been publicly ridiculed for communications described as “chummy” with Epstein. Ruemmler, once considered for Attorney General, had downplayed her connection to Epstein. However, the communications show a more familiar association, including one stating, “I’ll be here all week — you may get sick of me.”
In another email, Ruemmler responds to a Daily Beast article about Epstein’s crimes by saying, “Good lord. A novella of rehashed crap.”
With Princess Sofia, the emails show that the former model and reality TV starlet met with Epstein. The Swedish government has tried to control the outcry, stressing that “these meetings took place in social settings, such as at a restaurant and a movie premiere.”
The problem is that context rarely matters in such stories. The Trump photo is a good example. The point is to make it look like the Democrats are protecting the identities of victims literally embraced by Trump from an Epstein harem of underage girls. The same tactic was used just a few weeks earlier when the Democrats released an email related to Trump with the name of a possible victim redacted. The White House objected that the name was that of Virginia Giuffre whose name was already public. Giuffre, who died by suicide recently, had previously said Trump was not involved in her abuse. The redactions were used strategically to suggest that this was another, previously undisclosed victim implicating Trump.
Under the common law, there is a tort called “false light” that includes pictures that may be true but are presented in a false light. This latest tranche is a blinding array of alleged false light imagery.
A torrent of material is now coming from the courts and Congress in the name of transparency. It is hard to argue against transparency. Indeed, some of us have argued for greater transparency on issues like the investigation into Epstein’s suicide. There are also established grounds for the release of sealed information. The question, rather, is the wholesale release of such information.
Yet it is unpopular to raise such concerns when the appetite of the public is so high. It is even more difficult when the underlying emails, from figures such as Summers, are so disgraceful and repulsive.
Historically, this material has been protected because investigations scoop up a wide swath of individuals and evidence that are later found immaterial or collateral to the underlying crimes. It is often the rawest of evidence without satisfying standards of evidence or relevancy in an actual trial.
The public appetite for such releases can become insatiable. How about the Harvey Weinstein or Bill Cosby cases? Now that Congress has enacted special legislation to force the release of the Epstein files, there will likely be a greater expectation that other controversies demand equal transparency.
When House Speaker Mike Johnson (R-La.) called for greater review of the Epstein material and the need for redactions, Democrats accused him and others of covering up the Epstein files. It worked. Congress rushed to pass the legislation compelling the release of the material.
Despite their denials, everyone loves gotcha stories exposing celebrities. It does not matter that the conduct being exposed might be entirely legal and unrelated to any underlying crime. The result is guilt by association, without the context of what that association amounted to in a given case.
The question now is whether the new transparency could erode longstanding protections for grand jury and sealed material in these investigations. Those protections could prove to be the most lasting legacy of Jeffrey Epstein.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of the best-selling book “The Indispensable Right: Free Speech in an Age of Rage.” He previously represented a grand jury in the Rocky Flat case over the exceptions to grand jury secrecy.