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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
Waterboard all of the staff of Justice Ketanji. Yesterday.
I think there is a good chance that the leaker is already consulting with a lawyer, and may in fact “confess” in return for considerations in not bringing any prosecution. While this is a matter of first impression, there are criminal statutes that could apply, including one that was used against the Jan. 6 defendants.
The Marshall will get some rope to handle this, but, if unsuccessful, it will be up to congressional Republicans like Ted Cruz to press the issue. A Special Counsel should be the next step if necessary. If this is pursued in earnest, the person will be found.
Couple days ago, I heard someone, maybe Mike Lee, describing the established procedures for handling notes, drafts, written communications, etc. It sounded almost like working with classified “working material”. Apparently, SCOTUS has the equivalent of “burn boxes” for their equivalent of working material. Somebody, either on his own or at the direction of a justice, did not follow procedures. A name has already been leaked. Ironic, isn’t it?
On the matter of the seriousness of the pursuit, 18 USC Sec. 1001 provides
The investigator, or CJ Roberts, could request that all who had access to the draft sign a statement that they were not involved in the leak. Based on the above, it would be a federal crime to make a “fraudulent statement.” And who might refuse to sign?
Under that statute, shouldn’t every politician in Washington be going to prison?
I think that the Court is serious. I hope the leaker is found, fired and disbarred. If the leaker is not found, then I would support the entire Clerk class being dismissed as the Court cannot have confidence in the current class of Clerks. It would be a sad experience for the rest of the Clerks, but it would drive home how important this issue is.
The term is close to being over. They’re not going to dismiss any clerks at this point with some significant decisions upcoming. In fact, I’d anticipate that the investigation won’t really ramp up until the clerks are pretty much done with the term.
The leaker will out herself, declare herself a whistleblower, and promptly receive a seven figure book deal, a contract with MSDNC or CNN, and a ‘Profiles in Courage’ award.
The left takes care of its own.
That is the beauty of being Democrat. Crime, breaking the rules pays. If this person is Rightish they will take them apart.
The person should be publicly castigated. This should follow the person around for the rest of their lives. Sure should be all over the media it should be posted a did a federal order should force that person’s name to the top of every Google search they should be known for all history as the person who did this. Nothing else about that person should ever matter to anyone else to anyone else other than they were this leaker.
If the left gets to do that sort of thing to the right over nothing then the only way to get them to stop that sort of behavior is to do it to them.
It would be a pain in the neck. However, I would think that each justice could go to their former Clerk Family and ask for volunteers who would be willing to come in and help out for several weeks. Many of the clerks have an active life, but the request for volunteers would likely be effective so that the October Term can be finished up.
Would I be willing to suspend my practice for a couple of months to help out? You betcha. Would a lawyer’s partners be willing to give an emergency leave of absence? Oh yeah, you bet they would.
I too think the Court will find some serious punishment to apply because the incentive for the Court to ensure a leak doesn’t happen again (not just at the Supreme Court, but also at all other federal courts) is so enormously high. Chief Justice Roberts says he is very concerned that the Court not be perceived as a political body. Although I think some of Roberts’ efforts toward that goal have been counterproductive, I think he is genuine in his concern, and the impact of this leak is far more serious than any of the issues about which he has previously expressed concern. So I think he will pull all the stops to find and punish the leaker. And NOT calling in the highly political Department of Justice (and its also political FBI) is part of the seriousness.
Rather critical.glad you ask.. If a largely conservative court can’t do this, it’s pretty much over.
You all realize, of course, that the identity of the leaker is already known and that the media/the administration are just pretending otherwise, yes?
@vthek
It’s known by the Politico reporter of course. But why do you think it’s more broadly known. I’m not saying it isn’t, but I don’t have evidence either way. Just curious.
“Integrity” and “character”? They’re lawyers…
Because there are only two or three clerks that fit the profile. Right now they have done nothing illegal. They could take them aside and make them swear under oath whether or not they leaked the memo. If they tell the truth, the worse they face is firing. If they lie, they face a felony perjury charge.
They aren’t doing that, though. They don’t want to know the answer.
@seawriter
I have had the unhappy experience of giving lots of depositions and testifying (and being cross-examined) in open court. Mostly related to patents and trade secrets. Sometimes as a fact witness and other times as an expert witness.
One of the things you quickly realize, if you’re serious about your testimony and not being crucified under cross examination, is that there are gaps in your knowledge that in the normal progression of life you fill in with assumptions, but when giving testimony you had better explicitly differentiate between what you actually know and what you’re just assuming by filling in the gaps.
It could be, exactly as you say, that there’s no testimony under oath going on and that they don’t really want to know the answer. But that is, IMHO, an example of gap filling – unless of course you have some inside source of information.
I take a backseat to no one in having a low opinion of the court and of John Roberts in particular. But however little confidence I might have in him, the simple fact is that I don’t really know what’s going on behind those walls and I will just have to wait and see how events unfold.
I heard that more recently myself. As I said I wasn’t sure I bought that the first time; however, competence is a lost art in the federal government these days.
What fun is that? Much more entertaining to just make up stuff and then intone it with the solemn certainty of the Oracle of Delphi.
Justice Roberts likely does not want the leaker revealed, because it will likely be one his Leftist legal mates, most likely Sonia Sotomayer. And if the leaker is revealed, what does Roberts do then? A problem Roberts does not want.
I think subsequent events will determine whether the leaker is ever known publicly. I don’t think the marshall has the tools to covertly determine the identity and he will not have the cooperation of Politico in sourcing it. But the gossip mill will be working in overdrive within the Court, but there is great incentive not to countenance external speculation with credible internal information. There is a name out there now with various speculations about rationale and strategy. In say “subsequent events” because the individual, whoever it is, is a hero in some quarters (particularly if the announced decision is different from the draft), a villain in others (particularly if the announced decision is different from the draft), and an unethical operator to a third segment of the population. Maybe they will be outed, but it may not happen in the short-term precisely because the Court wants to avoid anything that keeps fuel on the fire. I am not sure that any strategy Roberts pursues will avoid that, but that will be his inclination and at the moment that suggests a timing that is the equivalent of a “friday night news dump” to minimize attention and impact.
The identity of the leaker is known because DC runs on gossip and lies.
FIFY. Because of the lies (including bragging) it is doubtful that one and only one person is indisputably and unanimously known as the source of the leak.
Found this podcast with Ted Cruz to be interesting. He was a law clerk at SCOTUS for William Rehnquist so has a bit of insight into the court.
Link?
” Verdict with Ted Cruz” podcast. Co-hosted by Michael Knowles.
Apple
YouTube
Episode 122 Posted May 05
Politico knows who the leaker is take the reporter and put them in prison for contempt. Retake Congress and have the capital police go arrest them that’s the thing to do.
Its called sovereign immunity this law is only for us plebs who are not on the Government’s payrole.