(The hill) – Calls by senior Republicans for the Department of Justice (DOJ) to launch its own investigation into the leaked Supreme Court draft opinion alarm those who say the DOJ would blur the line of powers in pursuing something that might not even be a crime.
The leak sparked a series of finger-pointing and calls to roll heads after the landmark publication of a draft opinion that would overturn Roe v. Wade.
While the Chief Justice John Roberts ordered an investigation by the marshal of the court, some GOP lawmakers worry that it is not adequate.
“This lawless action should be investigated and punished to the fullest extent possible, to the fullest extent possible,” the Senate Minority Leader said. Mitch McConnell (R-Ky.) said during a floor speech Tuesday.
“I’m sure the Chief Justice will seek to shed some light on this matter. If a crime has been committed, the Department of Justice must fully prosecute it,” McConnell added.
Since then, 21 House Republicans have sent a letter to the Attorney General Merrick Garland demanding DOJ and FBI involvement, saying the lessor may have violated a law that prohibits the removal of records belonging to a law officer and that “an immediate criminal investigation is clearly warranted.”
The DOJ has a long history of involvement in investigating leaks, but that work has generally only followed the release of information with some sort of national security component.
Asked about the prospects of a DOJ prosecution, Liz Hempowicz, policy director at the Project on Government Oversight, asked, “For what crime?”
“From what we know so far, if it was someone who worked in the court who had access to the notice and chose to release it, the Supreme Court documents are not information. classified. So as far as I know there is no prosecutable crime just in the leak itself,” she said.
The Supreme Court’s code of conduct mandates lifetime secrecy about the court’s inner workings, which experts say makes it more of a breach of terms of service than a crime.
“The lessor has undoubtedly committed a dismissal offence. The idea of a criminal investigation is much more toned down,” Bradley Moss, a national security attorney, told The Hill via email.
Some experts have focused on a law which makes it possible to prosecute anyone who “knowingly misappropriates, steals, diverts or converts” a document.
Moss said the statue was the “only realistic criminal angle” assuming there was no corruption or hacking involved in the leak.
“However, the DOJ’s own internal manual says it will refrain from pursuing the case if the only thing ‘stolen’ was the information itself (such as a draft decision), and the purpose of the ‘theft’ was to release it to the public. That would seem to preclude the pursuit of an indictment in this case,” he said.
House Republicans focused on a separate status which focuses on anyone who “unlawfully conceals, deletes, mutilates, erases, or destroys” records that are “filed or filed with any clerk or officer of any court in the United States”.
“Anyone who leaked this draft opinion has seriously damaged the integrity of the Supreme Court’s reputation and should promptly be held accountable to the fullest extent of the law,” Rep. John Rose (R-Tenn.) wrote in a letter alongside his colleagues.
But Moss said prosecution under such a law would assume access to the document was unauthorized, which might not be the case if the funder was a clerk.
Even if there is a basis for an investigation, it is not clear that either entity wants the executive branch to get involved in court cases.
The Supreme Court has long prized its privacy and independence, in part for the reason the leak is so notable, while the DOJ has recently come under intense scrutiny of how it conducts its investigations into the leaks and pledged not to subpoena any more journalists.
“I imagine a Supreme Court justice would raise concerns about the separation of powers,” Hempowicz said.
“I mean, we have to fight for phone access to the pleadings. They don’t just easily open themselves up to public scrutiny or scrutiny,” Hempowicz added.
Garland has so far evaded questions about any potential DOJ involvement.
“The Chief Justice has announced that the Marshal of the Court will conduct the investigation,” he said.
The DOJ is unlikely to make such a move without an invitation.
“There would be serious separation of powers issues if the DOJ started digging into the inner workings of the Court. This is no doubt why Chief Justice Roberts is turning the investigation over to the Marshal for the time being. If they find something legitimately worthy of criminal investigation, they can always refer it to the DOJ at this point,” Moss said.
A possible middle ground could be that the courts could ask the FBI for technical assistance in conducting its investigation.
“The Supreme Court is likely to conclude very quickly that it does not have the resources – by which I mean the people with the experience, the knowledge, etc. – to conduct the type of rigorous, high-visibility investigation required here. said David Seide, a lawyer with the Government Accountability Project who has spent years working on internal investigations inside and outside the federal government.
“It’s like being asked who Deep Throat is. It requires such a serious investigation,” he said, referring to the source of the Watergate saga.
Marshal’s investigation will have to go beyond employee interviews to even assess the details of the scanned document.
“They need people with technical expertise and forensic analysis skills that are probably not in-house at the Supreme Court,” Seide said.
“Which organizations have this skill set and are good at investigating? Obviously the FBI has it,” Seide added.
Some lawmakers have openly expressed hope that the FBI will ultimately be the one to conduct the interviews in court.
“We’re about to find out what our Justice Department is made up of,” Sen. John Kennedy (R-La.) said this week.
“Everyone who has had access to this document that has been leaked is going to be visited by the FBI. And the person who leaked this document will have to either tell the truth or lie to an FBI agent, who submits it [to] lawsuits. So hopefully our Department of Justice does its job,” Kennedy added.
Democrats argued that their GOP colleagues should care more about the content of the leaked draft than whether it was shared with the public.
“I don’t care if the draft leaked. It’s a sideshow,” House Intelligence Committee Chairman Adam Schiff (D-California) wrote in a tweet. “What matters to me is that a small number of conservative justices, who lied about their plans in the Senate, intend to deprive millions of women of reproductive care.”
Hempowicz expressed concern that the scrutiny could deter others from sharing concerns about abuse or wrongdoing elsewhere in government.
“These kinds of investigations to find out who a funder is have a chilling effect,” she said. “This idea of prosecuting this person with their identity is not good from a public policy point of view.”
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