(The Hill) — Calls from high-ranking Republicans for the Department of Justice (DOJ) to launch its own investigation into the leak of a Supreme Court draft opinion are alarming those who say the DOJ would be blurring the separation of powers in pursuit of something that may not even be a crime.
The leak has set off a round of finger-pointing and calls for heads to roll following the history-making release of a draft opinion that would overturn Roe v. Wade.
While Chief Justice John Roberts has ordered an investigation by the court’s marshal, some GOP lawmakers are concerned that won’t be adequate.
“This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible,” Senate Minority Leader Mitch McConnell (R-Ky.) said during a floor speech Tuesday.
“I’m certain the chief justice will seek to get to the bottom of this. If a crime was committed, the Department of Justice must pursue it completely,” McConnell added.
Since then, 21 House Republicans have sent a letter to Attorney General Merrick Garland demanding DOJ and FBI involvement, saying the leaker may have violated a law that prohibits removing records belonging to a judicial officer and that “an immediate criminal investigation is clearly warranted.”
The DOJ has a long history of involvement in leak investigations, but such work has typically only followed the disclosure with information that has some sort of national security component.
Asked about the prospects for a DOJ prosecution, Liz Hempowicz, director of policy at the Project on Government Oversight, asked, “For what crime?”
“From what we know so far, if it was somebody who worked at the court who had been given access to the opinion and chose to leak it, Supreme Court documents are not classified information. So as far as I know, there’s no prosecutable crime just in the leak itself,” she said.
The Supreme Court’s code of conduct requires lifetime secrecy about the court’s inner workings, something experts say make it more of a violation of employment conditions than a crime.
“The leaker without question committed a fireable offense. The idea of a criminal inquiry is far more attenuated,” Bradley Moss, a national security lawyer, told The Hill by email.
Some experts have focused on a statute that allows prosecution of anyone who “embezzles, steals, purloins, or knowingly converts” a record.
Moss said the statue was the “only realistic criminal angle” assuming there was no bribery or hacking involved in the leak.
“However, DOJ’s own internal manual indicates they will refrain from pursuing the matter if the only thing ‘stolen’ was information itself (such as a draft ruling), and the purpose for the ‘theft’ was to disseminate it to the public. That would seem to rule out pursuing an indictment in this case,” he said.
House Republicans have focused on a separate statute that focuses on anyone who “unlawfully conceals, removes, mutilates, obliterates, or destroys” records that are “filed or deposited with any clerk or officer of any court of the United States.”
“Whoever has leaked this draft opinion has inflicted severe damage on the reputational integrity of the Supreme Court and should swiftly be held accountable to the fullest extent of the law,” Rep. John Rose (R-Tenn.) wrote in a letter alongside his colleagues.
But Moss said prosecution under such a statute would assume access to the document was unauthorized, something that may not be the case if the leaker was a clerk.
Even if there is a basis for an investigation, it’s not clear either entity is eager for the executive branch to become involved in court affairs.
The Supreme Court has long prized its privacy and independence, part of the reason the leak is so notable, while the DOJ has recently come under intensified scrutiny for how it conducts its leak investigations and has pledged to no longer subpoena journalists.
“I would imagine a Supreme Court justice would raise some concerns about separation of powers,” Hempowicz said.
“I mean, we have to fight to get telephone access to oral arguments. They don’t just kind of open themselves up for public scrutiny or scrutiny at all easily,” Hempowicz added.
Garland has thus far sidestepped questions on any potential DOJ involvement.
“The chief justice has announced that the marshal of the court will be doing the investigation,” he said.
It’s unlikely the DOJ would make such a move without an invitation.
“There would be serious separation of powers concerns if DOJ started poking around into the inner workings of the Court. That is no doubt why Chief Justice Roberts has the marshal handling the inquiry for now. If they uncover something legitimately worthy of a criminal inquiry, they can always refer it to DOJ at that point,” Moss said.
A possible middle ground could be that the courts might ask the FBI for technical assistance in conducting its investigation.
“The Supreme Court is likely going to conclude very quickly that they don’t have the resources — by that I mean the people with the experience, knowledge, etc. — to conduct the kind of high-visibility rigorous investigation required here,” said David Seide, an attorney at the Government Accountability Project who spent years working on internal investigations both inside and outside the federal government.
“It’s like being asked who Deep Throat is. It requires that serious of an investigation,” he said, referencing the source for the Watergate saga.
The marshal’s investigation will have to go beyond conducting interviews with employees to evaluating even the particulars of the scanned document.
“They need people with technical expertise and forensic analysis skills that are likely not in house at the Supreme Court,” Seide said.
“What are the organizations that have that skill set and are good at investigating? Obviously the FBI has it,” Seide added.
Some lawmakers have been open about their hope the FBI is the one ultimately conducting the interviews at the court.
“We’re about to find out what our Department of Justice is made of,” Sen. John Kennedy (R-La.) said this week.
“Every person who had access to this document that was leaked is going to get a visit by the FBI. And the person who leaked this document is going to have to either tell the truth or lie to an FBI agent, which subjects them [to] criminal prosecution. So let’s hope that our Department of Justice does its job,” Kennedy added.
Democrats have argued that their GOP colleagues should have more concern about the content of the leaked draft than the fact that it was shared with the public.
“I don’t care how the draft leaked. That’s a sideshow,” House Intelligence Committee Chairman Adam Schiff (D-Calif.) wrote in a tweet. “What I care about is that a small number of conservative justices, who lied about their plans to the Senate, intend to deprive millions of women of reproductive care.”
Hempowicz expressed concern that the intense scrutiny may deter others from sharing concerns about abuse or misdeeds elsewhere in government.
“These kinds of investigations to uncover who a leaker is have a chilling effect,” she said. “This idea of going after this person with their identity is not good from a public policy perspective.”