Thursday, December 1

Supreme Court’s Draft Opinion Would Overturn Precedent


Top Republicans on Tuesday called for a criminal investigation and charges against the source behind a leaked Supreme Court draft opinion overturning Roe v. Wade, with Senate Minority Leader Mitch McConnell of Kentucky saying the move was a “lawless action” that “should be investigated and punished as fully as possible.”

“The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable,” he said in a statement.

Sen. Ted Cruz (R., Texas) added on Twitter that he hoped the leaker is “fired, prosecuted and has to serve real jail time.”

While Chief Justice John Roberts directed the court’s marshal to investigate the matter, legal experts said it was not clear what charges, if any, the Justice Department could pursue over such a breach. A Justice Department spokesman declined to comment.

Most leak investigations target the disclosures of information that is classified or contained in confidential financial disclosures, which are illegal under federal law.

“While this seems to be a breach of protocol, of tradition and in some respects jeopardizes the integrity of the Supreme Court judicial process, I would not characterize it as a leak” of classified information, said Ari Redbord, a former federal prosecutor. “From a pure criminal investigative standpoint, I’m not sure I am aware of what a criminal charge would look like in this instance.”

Another federal law prohibits the theft or receipt of stolen government information or documents. But legal experts said it was not clear whether that statute—18 U.S.C. 641—would apply, if the source had legal access to the draft and shared it with Politico for no compensation.

“While 641 is brought up every time there is a leak, we usually don’t see prosecutions and convictions arise out if it because the statute is not a good fit for leaking a digital copy of a document that the leaker already had legal access to,” another former federal prosecutor, Renato Mariotti, said on Twitter.

Former federal prosecutor Ken White said a more likely criminal charge would be if the source lies to investigators pursuing the matter. And, experts said, the person could face professional consequences even if he or she is not charged.

“Whether I think there is some credible charge really depends on the specific circumstances of the leak,” Mr. White said.

The draft opinion was published Monday evening by Politico, which it said was written by Justice Samuel Alito and was the opinion of the court, implying a majority supported it. The authenticity of the draft, dated from February, was confirmed by Chief Justice Roberts, but he said it was not necessarily the final resolution in the case. The Supreme Court’s spokeswoman declined to comment.



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