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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?
Published in Law
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.
My sentiments exactly, Jim. Sad, isn’t it?
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?
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.
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).
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.
The Department of Justice should be renamed the Department of Snow Jobs.
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.
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.
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?
I had more confidence before they asked O.J. Simpson to lead the investigation.
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?
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 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.
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.
Whoever it is will be disqualified from ever holding a law license, but will have a free lunch
from coast to coaston either coast for the rest of his/her life.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.
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?
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.
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.
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.
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.
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.