WASHINGTON — Chief Justice John Roberts, in ordering an investigation into an “egregious breach of trust” in the leak of a Supreme Court draft opinion on abortion, tasked a relatively unknown court official to carry out what could be one of the most high-profile investigation in decades.
The Marshal of the Supreme Court has now undertaken the investigation to try to identify the source of the leak — a nearly-unprecedented breach of protocol that sent shock waves through the Supreme Court and Washington legal community.
“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said in ordering the investigation.
But many questions remain about how the investigation will be carried out and whether a federal crime was committed. Separately, there are questions about what powers the Marshal may use to find the person who leaked the documents.
“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”
Despite the Biden administration’s curtailing the government’s ability to seize records from reporters, the court’s marshal operates outside of that chain of command, opening the possibility for an investigation without traditional guardrails to protect journalists’ sources.
Here’s a look at the investigation and how it could play out.
Is it a crime?
That’s a matter of legal dispute, but many experts say bringing a criminal case would be extremely difficult.
“There is no special statute that makes it a crime to disseminate a draft Supreme Court opinion or other private court documents,” Renato Mariotti, a former federal prosecutor, said in a tweet.
Nevertheless, some lawmakers, particularly Republicans in the Senate, have called for an extensive investigation and prosecution of the person who leaked the document.
Sen. John Kennedy, R-La., demanded the FBI investigate the leak. And Senate Minority Leader Mitch McConnell, R-Ky., called for the Justice Department to “pursue charges if applicable.” He said the “lawless action should be investigated and punished as fully as possible.”
Generally, the Justice Department pursues leak investigations when classified information is unlawfully released to the public, but that isn’t the case here. And while there may be an argument that the release of the draft could amount to the theft of government property, the Justice Department’s guidelines suggest a prosecution would be unlikely.
Federal law prohibits the theft or receiving of stolen government information. But Justice Department guidelines say it is “inappropriate to bring a prosecution” under that law if the person had legitimate access to the information or documents and then used it “for the purpose of disseminating it to the public.”