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When I first learned that Chief Justice Roberts was going to order an investigation to find the leaker of Justice Alito’s draft opinion on Roe v. Wade, I was pleased to hear his decision, but not overly optimistic about the potential results. The federal government has a poor record of finding leakers and of prosecuting them.
I was even less optimistic when I learned that the person who would conduct the investigation, who may be more than competent in many ways, has never conducted this type of inquiry. Col. Gail Curley will be in charge:
The current marshal of the court is Colonel Gail A. Curley, according to the Supreme Court website. Curley, who came to the Court from the U.S. Army, was previously the chief of the National Security Law Division in the office of the Judge Advocate General and has been with the Supreme Court since June of last year.
In her position with the Army, the Court said Curley ‘supervised a team of judge advocates, led the strategic engagements program for the Judge Advocate General’s Corps, and provided legal advice and support on national security law to senior Army leadership.’
Justice Roberts apparently wants to limit the exposure of the court to further leaks by keeping the investigation in-house and restricting those who would have access to data collected.
Kevin Dwyer, a formal federal prosecutor, explained, however, the difficulties of prosecuting this type of case:
Justice Department involvement might not be an option; unlike leaks of classified information, which can be unlawful, the disclosure of internal Supreme Court documents might not qualify as a crime, Mr. Dwyer and others said. ‘Even if you could find a statute that applied, you’d have a really hard time in the courts,’ he said.
Would having the Justice Department involved inspire confidence that a thorough investigation will be conducted?
Will finding the leaker be a positive outcome, or will it open a can of worms? If it was a justice, how could this person have been approved for the highest court of the land? How could he or she have betrayed his or her colleagues? If it was a clerk, how carefully was the person screened? Was the person checked for verification of integrity and character?
Do you think the leaker will be found?Published in