Desperate times may call for desperate measures, but they also call for creative ones. Faced with a criminal president and a GOP congressional majority that’s wholly devoted to shutting down any and all transparency and accountability for him, Democrats will have to get increasingly resourceful in their efforts to crack through that facade. The very tentative good news is: They actually have options to do just that.
This is why you should pay attention to the news that Senate Democrats are now exercising an obscure, rarely used law to try to force transparency on the so-called Epstein files.
The New York Times reports that seven Democrats on the upper chamber’s Homeland Security and Governmental Affairs Committee just sent a letter to DOJ demanding that it turn over the information it has compiled related to the investigation pursuant to the 2019 arrest of Jeffrey Epstein on sex-trafficking charges, using a decades-old statute:
Under a section of federal law commonly referred to in the Senate as the “rule of five,” government agencies are required to provide relevant information if any five members of that committee, which is the chamber’s chief oversight panel, request it.
The letter spells out exactly what Democrats are demanding, calling for the release of “all documents, files, evidence, or other materials in the possession of DOJ or FBI related to” Epstein’s prosecution, including “audio and video recordings” and much more.
This is a good move. Let’s start with the law in question: It states that if “any five members” of that Senate committee request “any information” that is “related to any matter within the jurisdiction of that committee,” the relevant executive agency “shall” submit it. There’s a companion provision for the House.
A historical parallel here is worth noting. This 1928 law was passed in the wake of the Teapot Dome scandal, according to David Vladeck, a professor of government at Georgetown. That scandal, which involved a corrupt Cabinet member under President Warren Harding taking bribes in exchange for oil leases, resulted in higher public awareness of governmental corruption and the need for better congressional oversight to ensure transparency.
Critically, though, the statute that Senate Democrats are now invoking, Vladeck says, was originally designed to “ensure that the minority” in Congress “has real access to what executive agencies are doing.” As you may have noticed, this is a particularly urgent need right now: Democratic efforts at oversight have been entirely blocked by the GOP majority, which is devoted to protecting Trump at all costs.
House GOP leaders literally shut down a vote on whether to release the Epstein materials. And while there are scattered indications that some Republicans do want to force more transparency on the White House this fall, after congressional recess ends, it’s easy to imagine nothing coming of that, especially if and when Trump commands them to stand down.
Enter this new effort by Senate Democrats. There are reasons to think it might do some good.
Obviously the Justice Department will ignore the demand. But Senate Democrats can then try to take the administration to court. “The Justice Department has to comply,” congressional scholar Norman Ornstein told me. “If they refuse, Senate Democrats need to sue the attorney general and the Justice Department for failure to comply with the law.”
Democrats seem to agree, as Democratic leader Chuck Schumer appeared to confirm at a press conference on Wednesday. “This is the law,” Schumer said. “This can be challenged in the courts.”
Congressional procedure expert Sarah Binder says the whole matter will then turn on what the courts say. “The statute is very clear—agencies shall provide these documents,” Binder told me. “The question is whether the courts would agree that a group of senators, as opposed to the whole chamber, has standing to sue.”
Here there’s reason for (very) cautious optimism. House Democrats got pretty far the last time this was attempted. They invoked the statute in 2017 to try to force the first Trump administration to divulge information related to the Trump International Hotel in Washington, D.C., which raised many ethical issues.
Importantly, an appeals court ruled that House Democrats did have standing to bring this lawsuit. And the Supreme Court even agreed to hear the case in 2023. But that never happened because the Democrats ended the lawsuit after they received the documents they’d sought.
Now this same question could be considered by the high court, only this time on the Epstein case. Vladeck, who was involved in the previous litigation, says he thinks this is likely, precisely because the courts already tilled so much relevant ground in that litigation. Appeals courts will rule the same way this time, Vladeck predicted, with the result that “this case” or one like it “will have to get to the Supreme Court.”
Obviously, it’s anybody’s guess how the high court would then rule. But sustained legal efforts like these will keep the media focus on what the administration is refusing to do in the face of overwhelming public interest in getting to the bottom of this scandal. And it will keep the focus on what the courts are doing.
“The courts can screw around with this, but it would clearly be saying, ‘We don’t care about the law,’” Ornstein told me. “Every time we can shed light on the unwillingness of John Roberts and the Supreme Court to do anything about Trump’s lawlessness, the better off we are, even if it’s far from ideal.”
I’ve argued that there’s real value in efforts like this from the minority. They can be constructive if they impart new information to the public or shine a glaring light on the failure of others in power to impose accountability. As Marcy Wheeler notes, it can also help break through the clutter.
The failure of accountability is everywhere in the Epstein matter. After campaigning on a promise of transparency, the president—with the active assistance of most of the GOP—is thwarting disclosure of untold damning information involving a ring of child predators, information that quite possibly involves some of the richest and most powerful people in the world, including the president himself.
It’s easy to give up on congressional oversight. But Democrats have options for getting very creative. No matter how hopeless it might seem at times, we shouldn’t lose sight of that, lest we do Trump’s (very) dirty work for him. Democrats: Stay on this, and don’t let up.
(Except for the headline, this story has not been edited by PostX News and is published from a syndicated feed.)
