Is SCOTUS Serious About Finding the Leaker?

 

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?

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  1. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Would having the Justice Department involved inspire confidence that a thorough investigation will be conducted?

    I have little confidence in anything the current Justice Department does.

    • #1
  2. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Jim McConnell (View Comment):
    I have little confidence in anything the current Justice Department does.

    My sentiments exactly, Jim. Sad, isn’t it?

    • #2
  3. Hang On Member
    Hang On
    @HangOn

    One branch of the government calling in another branch of the government to investigate its dirty laundry just wasn’t going to fly – even if the Justice Department had a sterling reputation, which it doesn’t.

    I doubt that the leak is illegal. That doesn’t mean that the leaker shouldn’t be outed, even if the leaker is another justice. The other justices will then know how to deal with the leaker going forward. Clerks can be fired – and ruined. Another justice can be shunned and distrusted and thus less of a collegial place.

    It is also quite likely that the person leaking covered his/her tracks well. The journalist probably didn’t receive the opinion in person but over the transom. With a false name or a name implicating someone else even. Who knows?

    • #3
  4. Raxxalan Member
    Raxxalan
    @Raxxalan

    Pretty sure they will find the leaker.  The number of people is pretty small and they are probably not use to trying to cover their tracks in a sophisticated way.  If it is a clerk we will hear about if it is one of the justices we won’t.

      

    • #4
  5. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Hang On (View Comment):

    One branch of the government calling in another branch of the government to investigate its dirty laundry just wasn’t going to fly – even if the Justice Department had a sterling reputation, which it doesn’t.

    I doubt that the leak is illegal. That doesn’t mean that the leaker shouldn’t be outed, even if the leaker is another justice. The other justices will then know how to deal with the leaker going forward. Clerks can be fired – and ruined. Another justice can be shunned and distrusted and thus of a collegial place.

    It is also quite likely that the person leaking covered his/her tracks well. The journalist probably didn’t receive the opinion in person but over the transom. With a false name or a name implicating someone else even. Who knows?

    All excellent points, Hang On. I have to wonder if an experienced person who would have covered his/her tracks would have even done such a thing . But then, who knows (as you say).

    • #5
  6. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Raxxalan (View Comment):
    If it is a clerk we will hear about if it is one of the justices we won’t.

    Isn’t it possible that a justice’s name would be leaked? Just sayin’ . . . especially if it was a Leftist justice, I wonder if the Conservatives would not want the truth out. How “collegial” would they be willing to be?

    • #6
  7. Percival Thatcher
    Percival
    @Percival

    Susan Quinn: Would having the Justice Department involved inspire confidence that a thorough investigation will be conducted?

    • #7
  8. Raxxalan Member
    Raxxalan
    @Raxxalan

    Susan Quinn (View Comment):

    Raxxalan (View Comment):
    If it is a clerk we will hear about if it is one of the justices we won’t.

    Isn’t it possible that a justice’s name would be leaked? Just sayin’ . . . especially if it was a Leftist justice, I wonder if the Conservatives would not want the truth out. How “collegial” would they be willing to be?

    I doubt they would do that.  It would make the problem worse.  I wouldn’t want to be that person in chambers.

    • #8
  9. Percival Thatcher
    Percival
    @Percival

    The Department of Justice should be renamed the Department of Snow Jobs.

    • #9
  10. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    On the latest “Law Talk” podcast, John Yoo pointed out that if leaks like this occurred more often, the reputation and credibility of SCOTUS would be severely damaged; they would just be seen as another political body.

    • #10
  11. Ray Gunner Coolidge
    Ray Gunner
    @RayGunner

    Susan Quinn: Would having the Justice Department involved inspire confidence that a thorough investigation will be conducted?

    I have much more confidence in Marshal Curley than the DOJ.  Firstly, she has a much stronger incentive to find the leaker than does the DOJ because the security of the Court IS her whole job, and she is answerable to the Chief Justice, who is really hot to find the leaker. Not so with some DOJ employee.  Secondly, Curley will not be investigating for purposes of bringing criminal charges, so she can require SCOTUS employees to answer her security questions as part of their job duties. If they refuse to answer her questions (disclose their emails, phone logs, etc.) those employees can be fired for insubordination, which is a career-wrecker at that level, so a pretty strong incentive for people to fess up about what they know.   OTOH, if the DOJ comes in looking for a crime, no one has to answer any questions under the 5th Amendment.

    • #11
  12. CACrabtree Coolidge
    CACrabtree
    @CACrabtree

    Raxxalan (View Comment):

    Susan Quinn (View Comment):

    Raxxalan (View Comment):
    If it is a clerk we will hear about if it is one of the justices we won’t.

    Isn’t it possible that a justice’s name would be leaked? Just sayin’ . . . especially if it was a Leftist justice, I wonder if the Conservatives would not want the truth out. How “collegial” would they be willing to be?

    I doubt they would do that. It would make the problem worse. I wouldn’t want to be that person in chambers.

    I’m thinking that there’s a good posibility that the leaker is already known but the Court doesn’t know what they’re going to do about it.  Do they release the name and make a hero out of the jerk?  Do they bring charges and place the person under arrest?  

    • #12
  13. Keith Lowery Coolidge
    Keith Lowery
    @keithlowery

    I had more confidence before they asked O.J. Simpson to lead the investigation.

    • #13
  14. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Just curious.  Why can’t the leaker just claim “whistle blower” status and run with it?

    • #14
  15. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Fake John/Jane Galt (View Comment):

    Just curious. Why can’t the leaker just claim “whistle blower” status and run with it?

    I can’t see how that would pass the smell test. A whistleblower is reporting on wrongdoing of some sort; what was being done wrong?

    • #15
  16. Stad Coolidge
    Stad
    @Stad

    Fake John/Jane Galt (View Comment):

    Just curious. Why can’t the leaker just claim “whistle blower” status and run with it?

    Because there was nothing illegal or suspect being revealed.  The leak was of a work in progress, and is not the final majority opinion – if it even is a majority opinion in the final analysis.  Nothing is fully known now, so we should just wait and see . . .

    • #16
  17. Ray Gunner Coolidge
    Ray Gunner
    @RayGunner

    Fake John/Jane Galt (View Comment):

    Just curious. Why can’t the leaker just claim “whistle blower” status and run with it?

    I don’t know about D.C. law, but getting “whistle blowing” protection usually requires that the employee is “blowing the whistle” on some unlawful conduct/actions by the entity in which he works.   At SCOTUS, there is nothing unlawful about a writing a draft opinion.  On the contrary, it’s exactly what SCOTUS is supposed to do.  So no “whistleblower” protection for this leaker. 

    • #17
  18. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Ray Gunner (View Comment):

    Fake John/Jane Galt (View Comment):

    Just curious. Why can’t the leaker just claim “whistle blower” status and run with it?

    I don’t know about D.C. law, but getting “whistle blowing” protection usually requires that the employee is “blowing the whistle” on some unlawful conduct/actions by the entity in which he works. At SCOTUS, there is nothing unlawful about a writing a draft opinion. On the contrary, it’s exactly what SCOTUS is supposed to do. So no “whistleblower” protection for this leaker.

    If they find him/her and it is a Leftist and a clerk (or maybe even a Justice), I can’t wait to see how the person will be lauded as a hero of the people. That will be fascinating to watch. 

    • #18
  19. DonG (CAGW is a Hoax) Coolidge
    DonG (CAGW is a Hoax)
    @DonG

    Finding the leaker is a snap for the NSA (surely they already know).   If the person was Republican, they would be declared a terrorist and outed. 

    • #19
  20. Ray Gunner Coolidge
    Ray Gunner
    @RayGunner

    Susan Quinn (View Comment):
    If they find him/her and it is a Leftist and a clerk (or maybe even a Justice), I can’t wait to see how the person will be lauded as a hero of the people. That will be fascinating to watch. 

    Whoever it is will be disqualified from ever holding a law license, but will have a free lunch from coast to coast on either coast for the rest of his/her life.  

    • #20
  21. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    What is leaker was not a leaker but instead a leak by the intelligence bureaucrats doing their thing?  

    • #21
  22. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Fake John/Jane Galt (View Comment):

    What is leaker was not a leaker but instead a leak by the intelligence bureaucrats doing their thing?

    John, who would have given them the information??

    • #22
  23. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Susan Quinn (View Comment):

    Fake John/Jane Galt (View Comment):

    What is leaker was not a leaker but instead a leak by the intelligence bureaucrats doing their thing?

    John, who would have given them the information??

    They take what they want.  That is sort of their job or at least what they think their job is.  They may even being running an op like they did on Trump.  

    • #23
  24. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Stad (View Comment):

    Fake John/Jane Galt (View Comment):

    Just curious. Why can’t the leaker just claim “whistle blower” status and run with it?

    Because there was nothing illegal or suspect being revealed. The leak was of a work in progress, and is not the final majority opinion – if it even is a majority opinion in the final analysis. Nothing is fully known now, so we should just wait and see . . .

    I have been hearing a lot on the Left about a radical, illegitimate court before this event.  How is it illegal to report radical illegal activities by an illegitimate court.  How is that not covered?

    • #24
  25. Hang On Member
    Hang On
    @HangOn

    Susan Quinn (View Comment):

    On the latest “Law Talk” podcast, John Yoo pointed out that if leaks like this occurred more often, the reputation and credibility of SCOTUS would be severely damaged; they would just be seen as another political body.

    Since they ARE just another political body, is that a bad thing?

    • #25
  26. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Hang On (View Comment):

    Susan Quinn (View Comment):

    On the latest “Law Talk” podcast, John Yoo pointed out that if leaks like this occurred more often, the reputation and credibility of SCOTUS would be severely damaged; they would just be seen as another political body.

    Since they ARE just another political body, is that a bad thing?

    I think it’s a very bad thing. I’d prefer they find a way to pull back and re-assess their mission and their roles. But at this point, that may be impossible.

    • #26
  27. Flicker Coolidge
    Flicker
    @Flicker

    Ray Gunner (View Comment):
    I don’t know about D.C. law, but getting “whistle blowing” protection usually requires that the employee is “blowing the whistle” on some unlawful conduct/actions by the entity in which he works.   At SCOTUS, there is nothing unlawful about a writing a draft opinion.  On the contrary, it’s exactly what SCOTUS is supposed to do.  So no “whistleblower” protection for this leaker. 

    But then if I commit unlawful conduct and blow the whistle on myself, doesn’t that give me full protection from reprisal?  In a just world, it should.

    • #27
  28. Fritz Coolidge
    Fritz
    @Fritz

    Ray Gunner (View Comment):

    Susan Quinn (View Comment):
    If they find him/her and it is a Leftist and a clerk (or maybe even a Justice), I can’t wait to see how the person will be lauded as a hero of the people. That will be fascinating to watch.

    Whoever it is will be disqualified from ever holding a law license, but will have a free lunch from coast to coast on either coast for the rest of his/her life.

    One does not have to be admitted to a Bar if one goes into academia as a law professor, such as Anita Hill did after smearing Clarence Thomas. I suspect if the leaker is on the left, that person will end up lionized and land a cushy Ivy League law school gig.

    • #28
  29. Seawriter Contributor
    Seawriter
    @Seawriter

    I believe the leaker is known, but I doubt the leaker will be “found.” He or she will likely be allowed to resign “to seek other opportunities. “

    I also doubt the leaker violated any laws. What that individual did may be a despicable betrayal of trust, and a violation of all ethical standards, but I don’t think you can point to any law that has been broken. Not every violation of trust is a federal case. 

    • #29
  30. Raxxalan Member
    Raxxalan
    @Raxxalan

    I head an interesting theory yesterday that this might be a problem of mishandling of the opinion, i.e. leaving it out carelessly or emailing in in an insecure manner.  Not sure if I buy that, but there is an old saw about not ascribing to malice what is equally likely through incompetence.

    • #30
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