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High Court Issue: Should DOJ Join Abortion Draft Leak Probe?



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Now that Chief Justice John Roberts has ordered an investigation into the breach of an initial draft majority opinion overturning Roe v. Wade, what happens next is a mystery, reports Politico. There are no precedents for Roberts’ plans to identify the document’s path from the high court to Politico, a disclosure he termed a “betrayal” of the institution’s trust.

“We are very much in uncharted territory here,” said Erwin Chemerinsky, dean of the University of California at Berkeley law school. “Never before, to my knowledge, has a Supreme Court opinion been leaked like this. So never before has there been an investigation like this.”

While Roberts asked the marshal of the Supreme Court to investigate the breach of Justice Samuel Alito’s draft opinion, he offered no details. It is not clear whether the probe will include a criminal element.


While Republicans called for federal prosecutors and the FBI to get involved, many legal experts said the disclosure, no matter how shocking, was unlikely to amount to a crime.


Government leaks are rarely prosecuted, with the exception of unauthorized disclosures of classified information. The culprit would be likelier to face professional consequences, such as firing and disbarment.


Roberts appointed the marshal, Gail Curley, last year. She oversees a staff of 260, which includes the court’s police force, tasked with protecting the justices and grounds. That police force has limited investigative capability. It’s primarily geared toward overseeing operations within the Supreme Court building and providing physical security for justices, employees and visitors.

Curley could request assistance from the FBI, but that step itself would depend on how deeply the justices want another branch’s investigators poking around into their private communications. Former Attorney General William Barr said it may take a “grand jury” to identify the source of the breach. “It could be obstructing the administration of justice, the due process of justice,” he said on SiriusXM’s “The Megyn Kelly Show.” Any significant Justice Department involvement would involve problems with the constitutional separation of powers, raising the uncomfortable prospect of an executive branch agency rifling through the communications of Supreme Court justices and their closest aides.

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