It was recently reported that the leak of Associate Justice Samuel Alito’s draft opinion on Roe v. Wade immediately prompted calls from lawmakers calling for a criminal investigation, the Washington Examiner reports.
Senate Minority Leader Mitch McConnell, R-Ky., was among a number of top conservatives pushing for an investigation.
“This lawless action,” McConnell said, “should be investigated and punished as fully as possible.”
And despite a push from Chief Justice John Roberts for an investigation by the marshal of the court, many legal experts are skeptical of any criminal wrongdoing. One point of contention from those pushing a criminal referral to the Department of Justice is that a Supreme Court opinion is not classified, according to Omar Ochoa, an attorney based in Edinburg, Texas.
Ochoa told the Examiner that “there are certain agencies where disclosure of confidential information is actually a crime, like national security information, but I’m not aware of anything like that in the Supreme Court in terms of disclosing confidential information.”
While the leaker has not been identified, legal experts suspect the culprit is likely a law clerk or someone working in the court.
Still, some legal experts have cautioned against jumping to conclusions.
“I don’t know that we should necessarily assume that it was an inside job, so to speak, a clerk or a justice,” Jared Carter, a professor at Vermont Law School, told the Examiner. “Certainly, there’s hackers out there who perhaps have an incentive or a motive to do something like this. … It’s all speculative at this point.”
Still, Ochoa maintained that it “does not appear to be criminal,” adding that there are such scenarios where a leak investigation could become more serious such as “if somebody were to use information from the Supreme Court on a corporate matter” or for financial gain similar to ignoring insider trading laws.
"*" indicates required fields
Ochoa speculated that if the leak stemmed from a clerk within the high court, the result would likely be a firing or disbarment.
“If it’s somebody,” Ochoa added, “you know, internal to the court, if it’s one of the law clerks, for example. I mean, they are all lawyers. … I think losing their employment would probably be the most straightforward outcome of the investigation if they were found out, but I think there’s also some potential for losing their license.”
And Bradley Moss, a prominent national security and whistleblower lawyer, agrees that, to a large extent, the leak is not criminal.
“Could they theoretically get away with that as sufficient predicate? I guess, in theory, they could,” Moss said. “It’s just a serious stretch.”