Why the Justice Department Is Unlikely to Investigate the Supreme Court Leak

WASHINGTON — After a leak of a draft opinion showed that the Supreme Court was poised to end women’s constitutional right to abortion, some Republicans and conservative commentators called for a criminal investigation.

But even as Chief Justice John G. Roberts Jr. condemned the disclosure by Politico as “egregious,” he instead directed the Supreme Court marshal to lead an internal investigation. According to a person familiar with the matter, the court has not asked the Justice Department to open a criminal investigation or to lend the marshal support and resources.

A Supreme Court spokeswoman this week declined to answer questions about the status of the inquiry, including the number of people assigned to it and what the rules are — like whether it is up to each justice to decide whether to make themselves, their clerks and their relatives available for any questioning or device inspection.

Here is a closer look.

What difference could a criminal investigation make?

The Justice Department has a cadre of agents with experience investigating leaks. By contrast, the Supreme Court marshal, Gail A. Curley, is a former national security lawyer for the Army whose office of about 260 employees primarily provides physical security for the justices and the court building.

Law enforcement officials for the executive branch have legal tools for extracting information, including the ability to issue grand-jury subpoenas to compel the disclosure of testimony and records, like logs of communications held by phone companies.

But it is far from clear that the justices want agents of the executive branch grilling their clerks and relatives and going through the computers in their chambers and the cellphones of their associates. As a matter of constitutional principle, they are a coequal branch of government. And none can be sure whether the leaker, if identified, will turn out to be a liberal or a conservative.

Would a criminal investigation enable the F.B.I. to subpoena Politicoto disclose its sources?


Under a policy imposed by Attorney General Merrick B. Garland last year, prosecutors and agents are broadly prohibited from using subpoenas, warrants or court orders to compel reporters to testify, or to seize reporters’ records from their employers or from communications companies, in leak investigations.

Would it be lawful for the F.B.I. to open an investigation?

This is far from clear.

F.B.I. agents are not authorized to start using tools like grand-jury subpoenas without formally opening an investigation. And to open one, they must have some basis to believe that a specific crime may have been committed.

In the case of this particular leak, it is unclear what the potential prosecutable crime was. It is not obvious there was any, given that it appears as if someone with access to the draft — like a justice, a clerk or a family member — provided a copy to a reporter without authorization.

What leaks have been treated as crimes in the past?

Leaks of classified information.

Federal law criminalizes the unauthorized disclosure of national security secrets. Specifically, under the Espionage Act, it is a felony to disclose, to someone not authorized to receive it, information related to the national defense that could be used to harm the United States or aid a foreign adversary. And a small handful of specific types of information — like nuclear secrets, the identities of covert agents and techniques for surveillance of intelligence communications — are separately protected by criminal laws.

But a draft opinion about abortion rights law is not a national security secret.

What about treating the leak as theft of government property?

Treating the leak of a copy of an unclassified document as theft of government property would break new ground and is barred by a written Justice Department policy. A prosecutorial manual states that “a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft.”

There are other problems. Among them, the “theft” statute is an awkward fit for the act of taking a copy of a document whose rightful owner still has full use of it, unlike stealing a tangible object. In the private sector, intellectual property laws bar such unlawful copying — but government files are not copyrighted.

Are there other novel ideas floating around?

Yes, several. All those would be novel in a leak case and carry various problems.

For example, some commentators have pointed to a law that makes it a crime to corruptly obstruct an official proceeding. But among other challenges, that route depends on understanding what the effect — and the intended effect — of the disclosure was, which is still the subject of wild speculation.

Others have pointed to the crime of exceeding one’s lawful access to a computer. But nothing in the public record suggests a hacking occurred. And just last year, the Supreme Court narrowed the scope of that law to exclude people who have lawful access to a system but download something from it for an unauthorized purpose.

Commentators have also pointed to a law that makes it a crime to unlawfully remove a judicial record. But it is not clear that law covers a situation in which someone made a copy but left the original intact; in a 2014 case in the District of Columbia, a judge said the statute criminalized only “the obliteration of information from the record of public affairs.”

“One has the sense that some people are so offended by the leak that they want it not only to be wrong, but they also want it to be illegal,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “Lots of things are wrong that are not illegal.”

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