Top Republicans call for probe into SCOTUS leak
Congressional Republicans issued calls for an investigation after a draft Supreme Court opinion to overturn Roe v. Wade was leaked to the press.
A draft of the decision for Dobbs v. Jackson Women’s Health Organization was leaked to Politico and published by the news outlet on Monday, prompting anger from the GOP at the shattering of longtime Supreme Court confidentiality norms.
“Yesterday’s unprecedented leak is an attempt to severely damage the Supreme Court. This clearly coordinated campaign to intimidate and obstruct the Justices of the United States Supreme Court, and its independence in our political system, from upholding the Constitution must be immediately investigated by the court,” House Minority Leader Kevin McCarthy (R-Calif.), House Minority Whip Steve Scalise (R-La.), and House Republican Conference Chair Elise Stefanik (R-N.Y.) said in a joint statement on Tuesday.
“Last night’s stunning breach was an attack on the independence of the Supreme Court. By every indication, this was yet another escalation in the radical left’s ongoing campaign to bully and intimidate federal judges and substitute mob rule for the rule of law,” Senate Minority Leader Mitch McConnell (R-Ky.) said in another statement.
“This lawless action should be investigated and punished as fully as possible. The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable,” McConnell said.
The secretive Supreme Court was once described as the last “leak-proof” institution in Washington.
Details of internal deliberations had started to leak into the press in recent years, but until Politico published the draft Dobbs majority decision Monday night, no draft opinion in the court’s modern history had been leaked to the public ahead of publication.
According to the report, five conservative justices are part of the majority opinion, with Chief Justice John Roberts’s position to be determined. Justices may still switch positions, and the final decision could look different than the draft.
If the decision holds, there would no longer be a constitutional protection to the right to abortion, leaving regulation to Congress and the states. More than a dozen states have “trigger” laws that would automatically ban abortion if Roe is overturned.
Sen. Mitt Romney (R-Utah) also called for an investigation into the “breach of the Court’s deliberative process,” and for those responsible to be “punished.”
“This unprecedented leak must be investigated. If this was an attempt to intimidate the justices, the individual responsible must be punished to the full extent,” tweeted Rep. Jim Banks (R-Ind.), chairman of the conservative Republican Study Committee.
House GOP leadership left the burden of investigating the leak to the court, and McConnell called for a Department of Justice investigation. It is unclear if some Republicans would support a Congressional probe into the leak.
CBS reported Monday night that a full-scale investigation involving the FBI is expected to try to determine the source of the leak.
Arizona Republican Senate candidate Blake Masters went as far as to assert that “the SCOTUS draft leaker probably committed a federal crime.” Legal experts, though, say that there is not a clear basis for criminality.
Prominent Washington attorney Mark Zaid, who represented the whistleblower at the center of former President Trump’s first impeachment trial, told The Hill that it is “highly doubtful” that the leak of the draft opinion was criminal.
“It certainly is a fireable offense, but the only thing that even remotely would criminalize this leak is 18 U.S.C. 641,” added attorney Bradley Moss, who works at Zaid’s firm, referencing a statute about embezzlement and stealing. “That provision is unlikely to be applied in this context in my view.”
Jonathan Turley, a contributor to The Hill and a law professor at George Washington University who testified against impeaching Trump in his first trial, said on Fox News Tuesday that while the leak was “deeply unethical,” it is “not generally viewed as a crime.”
But he warned that if the leaker lies to FBI agents, this would constitute as a criminal offense.
Andrew C. McCarthy, a contributing editor at the conservative National Review and former assistant U.S. attorney, had a different opinion.
“If you embezzle government records, that’s a crime,” McCarthy said on Fox. “If you obstruct justice in a judicial proceeding, that’s a crime.”
More likely is that the leaker, if found, could face professional consequences. Sen. Josh Hawley (R-Mo.) called for the leaker to be disbarred.
“The open thread here is, what does accountability look like for the leaker? This is likely a lawyer who took an oath. And that oath has been broken,” said Jessica Anderson, executive director of Heritage Action.
Sen. Ted Cruz (R-Texas) called on former Supreme Court clerks and the legal community to denounce “this egregious breach of trust.”