The news spread faster than Covid 19 in Shanghai -a draft of an opinion written by Supreme Court Justice Samuel Alito was published by Politico. Moreover, the proposed opinion is a bombshell – the overturning, and utter repudiation of the notorious Roe v. Wade.
The document has been authenticated by Chief Justice Roberts, who cautioned that “the draft opinion, dated from February…does not represent the ‘final position of any member on the issues in the case.'” In fact, “Justices circulate draft opinions internally as a routine and essential part of the Court’s confidential deliberative work…the document… does not represent a decision by the Court or the final position of any member on the issues in the case.”
Anyone familiar with the internal workings of the Supreme Court can verify that a draft opinion is subject to a variety of revisions, changes and sometimes, does not become the majority opinion. According to NPR legal affairs correspondent Nina Totenberg, “(t)here’s always a chance that the draft opinion doesn’t end up looking similar to the final opinion, noting that this has happened numerous times. A majority of justices must ‘sign onto’ the court’s opinion before it can be delivered publicly…’No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public)…'”
Totenberg went on to describe the impact of the disclosure of Alito’s draft opinion. “Leaks of any kind are rare at the Supreme Court, and…there hasn’t been such a massive breach in modern history. She called it a ‘bomb at the court’ that undermines everything the body stands for internally and institutionally, including its members’ trust in their law clerks and in each other. ‘No fully-formed draft opinion has been leaked to the press or outside the court,’ Totenberg says. ‘Once or twice there may have been leaks that say how is something going to turn out, or after-the-fact that somebody may have changed his or her mind. But this is a full-blown, Pentagon Papers-type compromise of the court’s work.'”
Conservative pundit Laura Ingram stated that, “(i)t’s incumbent upon (Chief Justice Roberts) to bring in every law clerk before him or the FBI. ‘Give me your phone. We want all your accounts. We’ve got to do our own — look at every device you’ve ever used and find out who did this.'” Meanwhile, US Senator Josh Hawley (R-MO) stated the obvious; “I think it’s plainly an attempt by the Left to try and change the outcome in this case and corrupt the process, and the court must not allow that to happen.”
The Court was clearly cognizant of both issues; “U.S. Chief Justice John Roberts…directed the court’s marshal to launch an investigation into the source of the leak. ‘To the extent this betrayal of the confidences of the court was intended to undermine the integrity of our operations, it will not succeed. The work of the court will not be affected in any way,’ Roberts said.”
“The marshal is the court’s chief security officer and facilities administrator, overseeing the court’s police force. Gail Curley, former chief of the National Security Law Division in the U.S. Army’s Judge Advocate General office, took up the post last year.” There are only so many employees of the US Supreme Court who could have access to a draft opinion. Thus, it shouldn’t be too hard for Marshal Curley to figure out who “let the cat out of the bag.” But what repercussions are in store for the leaker?
If you ask former US Attorney Andrew McCarthy, “(t)he leak is a corrupt act that was patently intended to influence the outcome of the Dobbs case. That makes it a criminal obstruction of that judicial proceeding. Obstruction is the charge that the Biden Justice Department has brought against some of the most serious Capitol riot defendants, whose corrupt acts were intended to influence and intimidate Congress into changing the outcome of the 2020 presidential election. It is even more clearly applicable to court cases — we don’t call it obstruction of justice for nothing.”
Further, McCarthy believes that “(u)nder federal law, it is a crime to embezzle government records or to convert them to one’s own use. The leaker, who took the draft opinion — the government’s property — and disseminated it outside the court’s established processes to someone not authorized to access it, has stolen a record and converted it to his or her own political purposes. That’s a crime.”
“Finally, federal law has long criminalized conspiracies to defraud the United States. As long interpreted by the Supreme Court, fraud in this context is not limited to schemes to swindle the government out of money or property. It includes deceptive acts that are intended to have, and can have, the effect of undermining government processes. Here, the leak was precisely intended to undermine the Supreme Court’s regular process for crafting, deliberating and issuing opinions that create binding United States law.”
But there are those who disagree. “‘Right now, it’s unclear whether the leaker broke any law at all,’ says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation. ‘Even the people claiming this act is beyond the pale and the FBI must investigate haven’t pointed to a definitive law this leaker allegedly broke.’ Timm cites a lengthy Twitter thread published…by the well-known UC Berkeley legal scholar Orin Kerr, who responded to the leak…by pointing out that a Supreme Court draft doesn’t meet any of the obvious criteria that would make it an illegal document to hand to a journalist: Most important, it’s not classified, so leaking it doesn’t open the leaker to prosecution under the Espionage Act. ‘As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion,’ Kerr concluded.”
Obviously Timm either didn’t read, or has not been made aware of McCarthy’s extensive list of laws that may have been broken by whoever revealed the draft opinion. Timm may also be guilty of selectively quoting Kerr – Reuters gives a more complete elaboration of the Berkeley legal scholar’s views on the matter;
“Drafts of Supreme Court opinions are not classified documents like national security files, said…Kerr, meaning their disclosure would not automatically trigger a criminal investigation. But even a leaker with authority to handle a draft opinion could potentially be charged with stealing or converting federal government property for their own use, he said.” Further, “(a)nyone who lies to an investigator as part of the court’s leak probe could also face a federal false statement charge, said Kel McClanahan, an adjunct professor at George Washington University Law School who specializes in national security law.”
Judge Wilson (ret.) served on the bench in NYC.