IE 11 is not supported. For an optimal experience visit our site on another browser.

The pitfalls in calling for a criminal investigation into the Supreme Court’s leak

Proving that an actual crime took place is at the top of the list.
Image: John Roberts
Chief Justice John Roberts.Patrick Semansky / AP file

The leak of the entire draft Supreme Court opinion that would overturn Roe v. Wade, which Politico first published, is mostly unprecedented, but it hardly justifies the overblown pearl-clutching reactions from 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 as legal experts have pointed out, there is no crime in the leaking of a draft court opinion unless there was evidence that it was accomplished by something like planting a bug or hacking a computer. 

The vast majority of court opinions are not classified and are meant for public consumption.

That’s because a leak can’t be prosecuted under the statute most commonly associated with the leaking of sensitive government information, which is U.S. Code Title 18, Section 641. Section 641 prohibits theft or receipt of stolen government information, including stealing documents, but the Justice Department has a specific policy that criminal prosecution under the statute is “inappropriate“ if the supposedly stolen property was obtained or used to be disseminated to the public.

Sen. Ted Cruz, R-Texas, one of the loudest voices crying for a federal investigation and prosecution, should know better, given that he was a clerk for Chief Justice William Rehnquist and was once the Texas solicitor general — but then again, he also previously called for the Justice Department to investigate a Netflix film. The point of that Justice Department policy is to protect whistleblowers and the media. The leak of this draft opinion would fall squarely within this prohibition against criminal prosecution.

This is also not the first time the Supreme Court has dealt with leaks. Information about the super-secret deliberations among the justices about Roe v. Wade itself was leaked in 1972 to The Washington Post. And some legal analysts thought that internal deliberations over the 2012 decision about the Obamacare individual mandate had leaked, according to Politico. For an actual criminal investigation involving a Supreme Court leak, one has to look back to 1919, when a clerk was investigated and charged with leaking the decisions in business-related cases to turn a profit in the stock market. And even that case never went to trial.

While it’s true that it appears this is the first time a full draft opinion from the court has been leaked, a draft of a decision — no matter how controversial — isn’t remotely like the storied leaks of classified materials. 

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

Some court opinions might refer to classified materials, and specific kinds of courts, like the U.S. Foreign Intelligence Surveillance Court, may issue classified opinions, but the vast majority of court opinions aren’t classified and are meant for public consumption. The draft decision at issue here, in Dobbs v. Jackson Women’s Health Organization, falls into that category.

In dramatically publicly promising an investigation, rather than just quietly conducting one, Roberts sounds like an angry president or member of Congress — part of the two branches of government that are overtly partisan.

If the leaker was a judicial clerk, it’s not even clear whether the clerk would face any formal bar disciplinary proceedings, given the lack of clearly applicable legal ethics rules, like attorney-client privilege, for judicial clerkships.

In light of all of this, why, then, does the chief justice take the step of publicly calling the leak a “betrayal” as the Republican leadership calls for an FBI investigation and Justice Department prosecution? 

For the Republicans, the loud outrage may be misdirection from the substance of an explosive decision that would remove a constitutional protection that might rally Democrats in the upcoming midterms. For the chief justice, the misdirection may be a panicky effort to cover up the deteriorating legitimacy of his court in the eyes of the American public.

But Roberts would do well to remember that calling for a leak investigation often ends poorly for the person consumed with finding the leaker. President Richard Nixon’s focus on leaks may have ultimately led to the break-in at the Watergate, which led to his resignation under threat of impeachment.

There are numerous pitfalls in Roberts' publicizing his “investigation,” which will be conducted by Gail Curley, the marshal of the Supreme Court — an office normally tasked with duties like overseeing building security rather than conducting investigations. If Curley were to request help from the FBI in the investigation or if former Attorney General William Barr’s suggestion that a grand jury may be needed comes to fruition, then the court may rue the day it allowed the executive branch to start asking questions of its staff and even questioning the justices themselves. It would set a precedent for review of a court that refuses to even adopt a code of judicial ethics, which all other U.S. courts follow.

In dramatically publicly promising an investigation, rather than just quietly conducting one, Roberts sounds like an angry president or member of Congress — part of the two branches of government that are overtly partisan. That’s probably not the kind of comparison the head of the judicial branch wants when the federal courts and the Supreme Court are being criticized for having become too politicized. An investigation into this leak won’t solve that problem. After all, leaks usually happen when structures are already rotting.