The Department of Justice (DOJ) is pursuing a criminal investigation in the 2022 leak of the Dobbs decision. Politico published the draft decision in May 2022, which led to several months of left-wing outrage before the final decision was published. An internal investigation was completed by the court, but the identity of the leaker was never confirmed. Now the DOJ is using subpoenas to try its hand at finding the person behind it.
The leak that exposed the U.S. Supreme Court’s (SCOTUS) draft opinion overturning Roe v. Wade is under criminal investigation by the Department of Justice (DOJ), years after the court’s own hunt for the culprit came up empty.
U.S. Attorney Jeanine Pirro’s Washington, D.C., office is leading the probe, multiple sources briefed on the matter told Fox News on Wednesday.
The investigation has been underway for at least a year, sources said, and comes three years after an investigation by SCOTUS failed to identify the culprit who leaked a draft of the 2022 decision.
Grand jury subpoenas have been issued during the probe, though it is unclear who received them.
The NY Times’ Jodi Kantor rehashes the old argument about whether the leaker was on the right or the left.
Conflicting theories about who was responsible circulated in legal circles and on the internet. Many conservatives believed that the leaker was a liberal, throwing a desperate grenade before the decision was finalized. On social media, some pointed fingers at clerks for liberal justices, posting their names, photos and unsubstantiated theories.
Many liberals, meanwhile, theorized that a conservative did it to lock in the abortion decision. The Times has reported that at the time of the leak, some of the justices were pursuing compromise efforts that might have preserved some federal right to abortion, efforts that ended with the publication of the leaked draft.
You really have to appreciate what flaming garbage Kantor is offering readers. She’s written these paragraphs in a way that makes conservatives sound wild-eyed and irresponsible, i.e., posting names, photos and unsubstantiated theories.
And then she moves on to the liberals without noting that there were mobs of progressives holding protests outside the conservative justices’ homes and, ultimately, a deranged man with a gun who’d flown from California to murder several justices if possible. She leaves that completely out of this story as if it’s not relevant to what was happening at the time. Neither Justice Kavanaugh nor would-be assassin Nicholas Roske are ever mentioned at all.
As to who did leak it, Justice Alito has said for years that he thinks he knows who it was but that there wasn’t enough evidence to name that person. But one thing he did let on is that the person he suspects was a liberal looking to pressure the court into changing its mind.
Justice Alito says the marshal “did a good job with the resources that were available to her” and agrees that the evidence was insufficient for a public accusation. “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” he says. He’s certain about the motive: “It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court.” …
A few pundits on the left speculated that the leaker might have been a conservative attempting to lock in the five-justice majority and overturn the constitutional right to abortion. “That’s infuriating to me,” Justice Alito says of the theory. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”
Justice Alito repeated this just last month:
“I do have an opinion. But the evidence available at this time is not strong enough for the court or for me to say this is the person who was responsible,” Alito told Fox News chief legal correspondent and “Fox News Sunday” anchor Shannon Bream in an exclusive interview last month.
“It was a grave breach of the trust that everybody who worked in this building had before that point.
“And it very predictably made the five of us in the majority targets for assassination and nearly resulted in the assassination of my colleague Brett Kavanaugh.”
Even if the DOJ can pin this down, there’s some question about what crime the leaker can be charged with.
The central problem for prosecutors is that disclosing a draft Supreme Court opinion is not necessarily a federal crime. Unlike classified national security information, the court’s confidential opinions and deliberations are not covered by a federal law specifically criminalizing their unauthorized release.
The theft-of-government-property theory could center on whether taking or transmitting the draft constituted the unauthorized conversion of government property rather than merely sharing information. Any prosecution would still need to satisfy the elements of the particular statute being invoked, and the Justice Department has not disclosed that it has settled on such a theory.
The best option at this point may be charging the person with lying to investigators. Presumably whoever leaked this was questioned as part of the internal investigation and they obviously lied in that interview. The actual charges and criminal consequences matter less than exposing this person and making it clear to everyone who did this and why. Plus, despite their high-profile clerkship, they’ll wind up working in a public defender’s office in Duluth or somewhere similar for the rest of their career, and that’s something.
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