Thread by @realjusthuman

🧵Update on DOJ's efforts to unseal Epstein and Maxwell grand jury material:

Judge Berman has DENIED DOJ's motion to unseal the grand jury materials in the Epstein case.

The reasons for the denial are the same as in Maxwell—no exceptions to Rule 6e and not a "special circumstance" case.

A judge CANNOT unseal grand jury materials UNLESS an exception under Rule 6e is met OR the case can be qualified as a "special circumstance" case.

In my thread on the denial to unseal grand jury materials in Maxwell I broke down the reasons for that denial and they are largely the same in this case.

https://x.com/realjusthuman/status/1954909861268885534

I'll be back shortly to write a thread on Judge Berman's decision and order.

storage.courtlistener.com/recap/gov.usco…

Here's why this material, like all grand jury material, is sealed in the first place.

These are the exceptions that allow for grand jury material to be unsealed.

In all three cases where DOJ sought to unseal grand jury materials, they conceded in their initial and subsequent filings that NO exceptions were met.

So the only path available to them for unsealing was qualifying the cases as a "special circumstance" case, something that is only recognized in the Second and Seventh Circuits.

Here are the 9 factors that district courts are to consider when determining if a case qualifies as a special circumstance where unsealing is warranted.

In Maxwell (SDNY), Epstein (SDFL), and here in Epstein (SDNY), DOJ argued that the case qualified due to public interest.

What follows next is Judge Berman's examination of the factors.

Short interruption. BRB.

This is the first time since 1973 that DOJ has asked for an unsealing based on a "special circumstance."

Factor 1: Who's asking?

DOJ.

But that alone does not authorize the unsealing.

"A significant and compelling reason to reject the Government's" unsealing request..."

-DOJ has already conducted a comprehensive investigation
-assembled a trove of Epstein materials
-and committed to sharing those materials with the public

Those 100,000 pages of materials "dwarf the 70-odd pages of [sealed] Epstein grand jury materials."

And that was an investigation. Something not subject to Fed Rule Crim Proc 6(e).

The Epstein grand jury was not investigatory.

"The Gov't is the logical party to make a comprehensive disclosure to the public..."

Judge Berman calls the seeking of grand jury materials being unsealed by the court a "diversion" from what DOJ itself possesses.

DOJ said in February they were going to release the Epstein files and did release some alongside organizing many materials that were already public and linking them from a press release page.
justice.gov/opa/pr/attorne…

But then the July 6 memo stated they would not be making further disclosures.

Now, as of this week, they are providing some materials to Congress.

"another compelling reason not to unseal the Epstein grand jury materials at this time... possible threats to victims' safety and privacy."

DOJ failed to provide sufficient notice to the victims prior to filing their petition to unseal.

Factor 1 favors continued sealing.

Factor 2: Does the Defendent or Gov't Oppose unsealing?

Epstein is dead.
DOJ is who's asking.

The Epstein estate filed a response and "[took] no position..."

Factor 2 favors continued sealing.

Factor 3: Why?

DOJ says the 'why' in their petition for unsealing is "public interests"

That is "legally insufficient."

Unsealing cannot "[be] based upon a blanket assertion that the public has an interest..."

Factor 3 favors conitnued sealing.

Factor 4: What specific information is sought for disclosure?

DOJ provides no specifics in their filings.

Judge Berman here does give us some specifics about the sealed materials, though.

-No victim testified in the grand jury
-Only one witness appeared, and that was an FBI agent who had no direct knowledge of the facts of the case and whose testimony was mostly hearsay.
-The grand jury materials in this case are:

a 56-page transcript from the first gj
a 14-page transcript from the second gj
a PowerPoint exhibit
a call log exhibit.

Factor 4 favors continued sealing.

Factor 5: How long ago was the grand jury?

Only 6 years ago.

Factor 5 favors continued sealing.

Factor 6: What's the current status of the principals and their families?

Epstein is dead, and his estate takes "no position" on the matter.

Factor 6 is neutral.

Factor 7: How much of this material is already public?

We're talking about 70-something pages plus two exhibits—a PowerPoint and a call log.

"The material was sufficient to obtain an indictment of Jeffrey Epstein, but not more."

Some of the Epstein grand jury info became public via the Maxwell trial and also via civil suits against Epstein and Maxwell, but "because the Epstein case never went to trial, most of the Epstein grand jury material did not become public."

That "trove" of materials that DOJ has from their comprehensive investigation into the Epstein and Maxwell investigations and cases is more "complete information" and "would better inform the public about the Epstein case."

Factor 7 favors continued sealing.

Factor 8: Status of the witnesses who testified to the grand jury?

Only the FBI agent testified, and he also testified in Maxwell in that grand jury and at trial.

Maxwell's appeal is pending at SCOTUS.

No victims were called to testify in the Epstein grand jury, but, after Epstein killed himself, a nolle prosequi hearing was held, and "23 victims spoke movingly about their horrific Epstein experiences at the hearing."

DOJ now says, "there are over a thousand victims of Jeffrey Epstein."

"It is difficult to know exactly how many victims favor unsealing and how many favor continued sealing," and it is likely that those who do favor unsealing "do so on the assumption that their safety, privacy, and dignity will be protected."

Factor 8 favors continued sealing.

Factor 9: additional need for secrecy

No Rule 6 exception is met, or even argued, here; the case is nowhere close to qualifying as a "special circumstance"; and the information that DOJ has on the investigation and the case is much greater than what is sealed here.

Factor 9 favors continued sealing.

Just like in Maxwell, where Judge Engelmeyer wrote a thorough, well-reasoned, and compelling denial of DOJ's motion, Judge Berman has done something similar here in Epstein.

But that won't stop grifty, dishonest, reactionary influencers and outlets from click- and outrage-baiting their audiences into emotionally reeeeeee-ing about it.

(sigh)