Supreme Court Chief Justice John Roberts ordered the Marshal of the Supreme Court on Tuesday to investigate the leak of what he acknowledged was an authentic draft majority opinion to overturn Roe v. Wade and the constitutional right to abortion. Specifically, the chief justice wants to know who leaked the opinion to Politico, and why.
Roberts called the leak a "singular and egregious breach of that trust," but "many questions remain about how the investigation will be carried out and whether a federal crime was committed," The Associated Press reports.
Roberts didn't indicate how long the investigation would take, whether the results will be made public, whether the marshal — Col. Gail A. Curley, in the job for less than a year — will expand the probe beyond Supreme Court staff, or if she will ask for help from the FBI. It also isn't clear if Curley can issue subpoenas — a Supreme Court marshal hasn't publicly done so since 1915, over a purloined copy of Martha Washington's will, AP reports. And crucially, the leak may not be an actual crime.
Republicans have been calling it a criminal act — the Justice Department "must pursue criminal charges if applicable" for this "lawless action," Senate Minority Leader Mitch McConnell (R-Ky.) urged, while Sen. Ted Cruz (R-Texas) said he hopes the leaker is "fired, prosecuted, and has to serve real jail time."
But "most leak investigations target the disclosures of information that is classified or contained in confidential financial disclosures," neither of which is applicable here, The Wall Street Journal reports. And the Justice Department wouldn't deem this a prosecutable theft of government property under current guidelines, AP adds.
"There is no special statute that makes it a crime to disseminate a draft Supreme Court opinion or other private court documents," tweeted federal prosecutor Renato Mariotti.
"While this seems to be a breach of protocol, of tradition, and in some respects jeopardizes the integrity of the Supreme Court judicial process, I would not characterize it as a leak," former federal prosecutor Ari Redbord tells the Journal. "From a pure criminal investigative standpoint, I'm not sure I am aware of what a criminal charge would look like in this instance."