Politico, which published the leaked draft decision overturning Roe v Wade this week, has a story up today about the hunt for the leaker. Chief Justice John Roberts has asked the marshal of the Supreme Court to investigate but that’s likely just the start of this process. At this point, it’s still an open question whether or not the leak was actually crime. And that could determine whether other investigative resources come into play.
While Roberts indicated he has authorized the marshal of the Supreme Court to investigate the breach of Justice Samuel Alito’s draft opinion, he offered no details about how the inquiry would proceed. What’s even less clear is whether the probe will include a criminal element. While Republicans called for federal prosecutors and the FBI to get involved, many legal experts said the disclosure, no matter how shocking, was unlikely to amount to a crime. Government leaks are rarely prosecuted, with the exception of unauthorized disclosures of classified information. The culprit would be likelier to face professional consequences, such as firing and disbarment rather than prosecution, they say.
In the meantime, the most urgent question is who will conduct the investigation. Roberts appointed the current marshal, Gail Curley, last year. She oversees a staff of 260 court employees, which includes the court’s police force, tasked with protecting the justices and grounds. But that internal police force has limited investigative capability…
Curley could request assistance from the FBI, which has the resources to aid any internal probe. But that step itself would depend on how deeply the justices want another branch’s investigators poking around into their private communications…
“My concern with the leaks investigation is that it is unclear whether any law has been violated, it is unlikely to be successful, and so interferes with the working of the Court,” he said. “I do not like leak investigations and wish they would not do this.”
Obviously if there’s no crime then there’s no reason for the FBI to get involved. Will the marshal of the Supreme Court be able to get to the truth on her own if the leaker knows he/she won’t be prosecuted and won’t face any consequences for lying to investigators? Probably not.
Bill Barr appeared on Megyn Kelly’s YouTube show yesterday to discuss the leak and the fallout. He had a somewhat different take. First, when Kelly asked him whether he thought the leak had come from a clerk on the right or one on the left, he said definitely the latter. “The second scenario is the only thing that makes sense to me,” he said. He continued, “I don’t think a conservative clerk would have put this out with the idea that this would somehow shore up a wobbly judge. This is going to be a controversial decision if it came out.”
In other words, if either Justice Kavanaugh or Barrett were having second thoughts about overturning Roe because of the backlash it would create, leaking the decision would make them more likely to get nervous rather than less likely. Now that wobbly judge is watching angry protesters show up at the Supreme Court. Any concerns they had about making a big change to the law are now redoubled.
As for the investigation into the leak, Kelly joked that “the Supreme Court Marshal investigating you” doesn’t “strike fear in the hearts of men and women.” Barr replied that Chief Justice Roberts still has the ability to appoint a special counsel “with a criminal law background” to manage the investigation. But Barr added that the investigation might need a grand jury “to compel the truth.”
At this point Kelly asked Barr whether the leak was a crime. He said he thought it was, at least potentially. “It could be obstructing the administration of justice,” he said. He added, “Obstruction means you’re trying to influence through some kind of wrongdoing and I don’t think it’s a stretch.”
Kelly also made a good point about the motive of this leaker, comparing him or her to Edward Snowden. “Take somebody like Snowden. He’s got reasons, you can disagree with his reasons, but he had reasons for what he did. He thought that the government was doing something unethical, illegal and it needed to be exposed. That’s not even arguably the case here. There’s no even alleged wrongdoing by anybody.
“This isn’t a whistleblower…They did it for political reasons.”
And that brings me back to the point Bari Weiss made yesterday. What type of person would have done this? As the unnamed law professor she spoke to said “I’m sure this person sees themselves as a whistleblower.” Here’s the exchange between Kelly and Barr.