AP/Jon Elswick
- GOP lawmakers and the right-wing media have zeroed in on the “lawless” leak of a seismic draft Supreme Court opinion that would overturn Roe v. Wade.
- They’ve suggested that the person who leaked the draft broke the law and “should be prosecuted” and “go to jail for a very long time.”
- But legal experts threw cold water on the allegations, saying that while the leak violated ethical norms, it likely didn’t break any laws.
The seismic reveal of a draft Supreme Court opinion Monday night that would strike down the landmark Roe v. Wade ruling on abortion rights has sent the public and political sphere into a frenzy.
While most of the conversation has centered on the enormous impact such a ruling would have on peoples’ ability to access safe and legal abortions in the US, the right-wing has zeroed in on the leak itself.
Almost immediately, it inspired a game of whodunit among conservatives and those in the right-wing media, many of whom suggested the person who leaked the draft opinion had broken the law.
Fox News commentator Laura Ingraham said Monday night that it’s “incumbent” for Chief Justice John Roberts to “bring every law clerk before him” and demand that they “give me your phones … or the FBI. Give me your phones. We want all your accounts … Look at every device you’ve ever used and find out who did this.”
Top congressional Republicans jumped on the bandwagon, with Senate Minority Leader Mitch McConnell describing the leak as a “lawless action” that should be “investigated and punished as fully as possible.”
“The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable,” he added.
GOP Sen. Ted Cruz of Texas also called for an FBI investigation and told reporters the person responsible “should be prosecuted and should go to jail for a very long time.”
He added that it was “utterly stunning that anyone at the court would leak a draft opinion,” and falsely claimed that “in over 200 years of our nation’s history, this has never happened and I’m appalled.”
In fact, as the law professor Jonathan Peters noted Monday, information has leaked out of the high court before, including 1973’s Roe v. Wade decision.
Moreover, despite conservative saber-rattling about the nature of the leak, experts say it doesn’t appear that any law has been violated.
“I am genuinely wondering what authority the FBI has here,” the national security lawyer Bradley Moss wrote. “Difficult to identify any realistic criminal violation.”
Orin Kerr, a law professor at the University of California, Berkeley, echoed that assessment, writing that while there are federal statutes that criminalize leaking classified information, draft Supreme Court opinions don’t fall under that category.
“As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion,” he wrote.
He added, however, that “although the leaking itself isn’t a crime, there may be a crime somewhere in the bigger picture. For example, perhaps someone or some institution hacked into the computer of someone who had a draft of the opinion. Or maybe someone stole a paper copy of the opinion from someone who had a copy. Both of those are federal crimes.”
Roberts on Tuesday announced in a statement that he had ordered the Supreme Court marshal to spearhead an investigation into finding the source of the leak.
David Lat, the author of the Original Jurisdiction newsletter and an expert on the court, told Insider that Roberts’ decision to delegate the investigation to the marshal “suggests they are treating it like an ethical and employment issue” and an “internal matter,” not a legal one.
He also pointed out that the court has a history of stopping short of attaching liability for actions that might stretch the law.
“It’s funny,” Lat said. “They’re not really fans of creative theories of criminal liability.”
That said, people familiar with the court’s deliberation process stressed that the leak spells trouble for the collegiality and internal trust that justices have traditionally enjoyed.
“The court can’t operate if that happens. This is a major, major leak,” a former Supreme Court clerk told Insider. “It’s hard to imagine a bigger leak.”
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