The push for the Trump administration to release its files related to the investigation of Jeffrey Epstein shows no signs of dissipating. On Monday, Democrats on the House Oversight Committee posted an image of a birthday note Trump allegedly sent Epstein in 2003 (MSNBC has not independently verified the note). Most GOP lawmakers are defending — or at least avoiding criticizing — the president amid the Epstein “hoax,” as Trump continues to call it. Yet one of his most ardent supporters, Rep. Marjorie Taylor Greene, R-Ga., has said she will side with the survivors of Epstein’s sex trafficking operation. And Greene can use one of the most powerful tools of her office to aid them.
With calls to release the files from across the political spectrum growing louder and louder, the Department of Justice and Republicans in Congress have largely run interference for the president. They’ve professed a commitment to justice for the survivors, but blocked any efforts at meaningful transparency. In July, Speaker Mike Johnson sent the House home early for its summer recess to prevent more votes on proposals to require the Justice Department to release the Epstein files.
If Epstein’s victims also name names, they could quickly find themselves defendants in defamation suits, too.
With the House back in session, Democratic Rep. Ro Khanna and Republican Rep. Thomas Massie are gathering signatures for a “discharge petition” that would enable the resolution to come up for a vote, and they are close to securing the number of signatures necessary for it to pass in the House. Though the White House said that supporting this effort would be deemed a “hostile act,” several Republicans, including Greene, have signed the petition.
In the face of this stonewalling and threats, the survivors are speaking up more than ever. At a news conference held by dozens of survivors last week, survivor Lisa Phillips said they would be compiling the so-called Epstein client list. But, she added, “We’re not quite sure, you know, how we’re going to release that or even if we’re going to.” That caution reflects the fact that sharing a list with the public could prove hazardous for the survivors. They already face threats and intimidation and releasing a client list carries the risk of legal action against them, including claims of defamation.
For instance, in 2019 Virginia Giuffre sued attorney Alan Dershowitz for defamation, alleging that he was “one of the men to whom Epstein lent out [Giuffre] for sex” and that he falsely claimed Giuffre made up allegations about him and Epstein. Dershowitz denied the accusations and countersued Giuffre for defamation. In 2022, both sides dropped their lawsuits, with Giuffre acknowledging that it might have been a case of mistaken identity. (Giuffre tragically took her own life earlier this year.)
If Epstein’s victims also name names, they could quickly find themselves defendants in defamation suits, too. That’s where Greene — and the Constitution — come in.
Thanks to the “speech and debate” clause in the Constitution, members of Congress have immunity for statements and acts carried out as part of their official duties, especially when they make statements within the legislative chambers or pursuant to their legitimate legislative powers.
That immunity for members of Congress may help shield them from Trump’s wrath is somewhat ironic. This immunity is not without limits, but since 1880, the Supreme Court has interpreted the speech and debate clause broadly, immunizing members of the House and Senate for a wide range of official acts. By the express terms of the Constitution, when a federal legislator carries out their official duties, “they shall not be questioned in any other Place” for their actions. That means that, at a minimum, when their actions are covered by this clause, and a statement on the House floor related to Congress’ efforts to investigate the Epstein matter certainly would qualify, they cannot be sued for defamation. That immunity allows Greene to say, as she did last week, that if the survivors “want to give me a list, I will walk in that Capitol on the House floor and I’ll say every damn name that abused these women. I can do that for them, and I’d be proud to do it.” Unlike the victims who might speak out, then, Greene, Massie and any federal legislator who wants to communicate the testimony of the victims would be completely immune from claims of defamation for their statements. Greene or any other member of the House or Senate could also go on the floor of either chamber and read out the statements and testimony of Epstein’s alleged victims without fear of any legal consequences. And the political consequences, for the president and those who are trying to fight transparency with respect to the lingering Epstein scandal, could be profound. The fact that immunity for members of Congress may help shield them from Trump’s wrath is somewhat ironic. Just last year the Supreme Court gave the office he now holds broad immunity, apparently even to commit criminal acts. But as members of his administration threaten Republicans who’re helping to bring justice to the survivors, they should remember that the members of Congress have their own immunity as well.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
