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Supreme Court Marshal Probes Leak That May Not Be Criminal

The Supreme Court marshal assigned to find out who leaked a draft opinion overturning Roe v. Wade is a retired Army colonel with untested investigative powers to uncover the breach, which might not be criminal. Gail Curley, whose duties include calling the court to order with “Oyez, Oyez, Oyez,” will seek to determine the source who shared the draft. The marshal oversees the Supreme Court Police Department, a federal law-enforcement agency that isn’t known to have conducted a leak investigation. The primary functions of the fewer than 200 officers are crowd control and personal protection for the justices.

Chief Justice John Roberts’s decision to rely on the marshal, rather than enlisting a large agency like the FBI, suggests the court wants to keep the controversy in-house. The marshal reports only to the court. “It is not the most aggressive way to pursue” an investigation, said St. John's University law Prof. John Barrett. “It’s a careful, nearby, trusted employee who can take on this task. It keeps it close and maximizes confidentiality.” The probe will likely focus on a small group with access to draft opinions: the nine justices, their 36 law clerks, and a small number of assistants in each office. Justices and staff have at times been working on laptops at home during the pandemic, potentially expanding the pool of suspects to roommates or family members. Congress has authorized the court police to enforce any law on or near the court’s grounds. “To run an effective leak investigation, especially against someone who is sophisticated, it would be extremely important to have the ability to compel both suspects and third parties to turn over relevant evidence,” said Kellen Dwyer, a former federal prosecutor. In this case, disclosure of internal Supreme Court documents might not be a crime. “Even if you could find a statute that applied, you’d have a really hard time in the courts,” Dwyer said.

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