The pitfalls of calling for a criminal investigation into the leak of the Supreme Court opinion on abortion

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The leak of the entire Supreme Court draft opinion that would overturn Roe v. Wade, which Politico first published, is mostly unprecedented, but it hardly justifies the overreaction and exaggeration of Chief Justice John Roberts and leading Republicans.

Let’s start with the baseless calls for a criminal investigation and prosecution by some Republicans. To be clear, the court looking into what happened is expected. But like legal experts pointed outthere is no crime in leaking a draft notice from court unless there is evidence that it was accomplished by something like planting a bug or hacking into a computer.

The vast majority of court opinions are unclassified and are intended for public consumption.

Indeed, a leak cannot be prosecuted under the law most often associated with the leak of sensitive government information, which is U.S. Code Title 18, Section 641. Section 641 prohibits stealing or receiving stolen government information, including theft of documents, but the Department of Justice has a specific policy that criminal prosecution under the law is “inappropriate“whether the allegedly stolen property was obtained or used for dissemination to the public.

Sen. Ted Cruz, R-Texas, one of the loudest voices calling for a federal investigation and prosecution, should know better, given that he was clerk to Chief Justice William Rehnquist and was once the solicitor Texas general — but again, he also previously called on the Justice Department to investigate a Netflix movie. The purpose of this Department of Justice policy is to protect whistleblowers and the media. The leaking of this draft notice would fall squarely within this ban on criminal prosecution.

It is also not the first time the Supreme Court dealt with the leaks. Information about the judges’ top-secret deliberations on Roe v. Wade himself were leaked in 1972 to the Washington Post. And some legal analysts believed that internal deliberations over the 2012 decision on Obamacare’s individual mandate had leaked, according to Politics. For a true criminal investigation involving a Supreme Court leak, one must go back to 1919, when a clerk was investigated and accused of leaking rulings in business-related cases to realize a profit in the stock market. And even this case was never judged.

While it is true that this appears to be the first time that a full draft court opinion has been leaked, a draft decision – however controversial – has nothing to do with it. to do with the legendary leaks of classified documents.

For example: the delivery by Daniel Ellsberg of the Pentagon Papers to the New York Times or the diffusion by Julian Assange and WikiLeaks of information on the operations in Guantánamo Bay, in Cuba. The Pentagon Papers, a top-secret Department of Defense study of American involvement in the Vietnam War from 1945 to 1967, were given to The Times without permission by the former Rand Corp analyst. Ellsberg, and information about the post-9/11 treatment of detainees at Guantánamo Bay was also classified material.

Some court opinions may refer to classified documents, and specific types of courts, such as the US Foreign Intelligence Surveillance Court, may issue classified opinions, but the vast majority of court opinions are unclassified and are intended for the public consumption. The proposed decision at issue here, in Dobbs v. Jackson Women’s Health Organization, falls into this category.

By dramatically publicly promising an investigation, rather than just quietly conducting one, Roberts sounds like an angry president or congressman — one of two branches of government that are openly partisan.

If the leak was a court clerk, it’s not even clear whether the clerk would face formal disciplinary proceedings from the bar, given the lack of clearly enforceable rules of legal ethics, such as attorney-client privilege. lawyer, for judicial internships.

In light of all of this, why, then, is the Chief Justice making the decision to publicly call the leak a ‘treason’ as Republican leaders call for an FBI investigation and Justice Department prosecution? ?

For Republicans, the strong outrage may be a misdirection on the merits of a bombshell decision that would strip away a constitutional protection that could win over Democrats in future terms. For the chief justice, the misdirection may be a panicked effort to cover up his court’s deteriorating legitimacy in the eyes of the American public.

But Roberts would do well to remember that asking for a leak investigation often ends badly for the person engrossed in finding the leaker. of President Richard Nixon focus on leaks may have ultimately led to the Watergate robbery, which led to his resignation under threat of impeachment.

There are many pitfalls in Roberts’ release of his ‘investigation’, which will be led by Gail Curley, the Supreme Court Marshal – an office normally tasked with tasks such as building security oversight rather than conducting investigations. If Curley were to ask the FBI for help in the investigation or if former Attorney General William Barr’s suggestion that a grand jury may be necessary comes to fruition, then the court may regret the day it allowed the executive to begin asking questions of its staff and even questioning the judges themselves. It would set a precedent for scrutiny of a court that refuses to even adopt a code of judicial ethics, which all other US courts follow.

By dramatically publicly promising an investigation, rather than just quietly conducting one, Roberts sounds like an angry president or congressman — one of two branches of government that are openly partisan. That’s probably not the kind of comparison the head of the judiciary wants as the federal courts and the Supreme Court are criticized for becoming too politicized. An investigation of this leak will not solve this problem. After all, leaks usually happen when structures are already rotting.

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