What does SCOTUS Roberts Demand for an Investigation into the Draft Breach Mean?

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Chief Justice of the Supreme Court has ordered an investigation into the leak of the Roe v. Wade draft that has ignited a firestorm across the nation. But just who will be in charge of the investigation, and what will the repercussions be? Some fear we may be treading into some very murky waters.

According to experts, there are virtually no precedents for Roberts’ plans to identify the 98-page document’s path from the high court to the pages of POLITICO, a “leak” he termed a “betrayal” of the institution’s trust. 

This is not the first such leak, and Supreme Court leak controversies have occasionally sparked national controversy in the past and even some calls for federal investigations, but those calls have never really resulted in any kind of serious or “official” investigation.

“We are very much in uncharted territory here,” said Erwin Chemerinsky, dean of the law school at the University of California at Berkeley. “Never before, to my knowledge, has a Supreme Court opinion been leaked like this. So never before has there been an investigation like this.”

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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 only limited investigative capability. It’s primarily geared toward overseeing operations within the Supreme Court building and providing physical security for justices, employees, and visitors.

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.

Some GOP lawmakers have already urged the FBI to get involved and interview anyone who likely had access to the draft.

Former Attorney General Bill Barr floated the idea that Roberts could appoint a former U.S. attorney or criminal law expert to lead a special internal investigation.

But any significant Justice Department involvement would involve problems with the constitutional separation of powers, raising the uncomfortable prospect of an executive branch agency rifling through the communications of Supreme Court justices and their closest aides.

The scope of exactly what Roberts has in mind for his investigation remains unknown.

“If there’s a serious investigation of who leaked, am I right that it likely includes not only all the clerks and Court staff that would have access to the opinion but also the Justices and their families?” wondered Orin Kerr, a law professor who has argued before the Supreme Court. “Could be pretty wide-ranging.”

Some have called for criminal investigation, but on what grounds appear murky. There could be criminal action if any money exchanged hands for the document. But Politico has vehemently stated it did not, and never has or will, pay for any kind of leaked information.

In the absence of payment being exchanged then, there is very little that is criminal in leaking unclassified information.  

“Leaks of non-classified information generally are not prosecutable, with very few exceptions,” said law professor and former George W. Bush White House legal czar Richard Painter. “That’s important to a well-functioning democracy, that leaks are not prosecuted.”

However, Painter added, the person who breached the court’s confidences could and likely should face professional consequences if identified.

“If a justice intentionally did it, I think that justice could be impeached and removed from office,” he said. “If a clerk did it, they could be dismissed, and there might be implications at the bar.”

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