Political Editors / May 6, 2022

In Brief: Prosecute the Leaker, Release the Decision

The Supreme Court’s integrity demands no less than these immediate actions.

“It would be difficult to cite a higher American public interest than conducting a criminal investigation of the Supreme Court leak,” argues former federal prosecutor Andrew McCarthy. “The current security of the justices and the long-term viability of the court as an institution depend on it.

That’s mincing no words. We’ve thoroughly covered the leak and the aftermath here and here. McCarthy’s interest is delving further into the investigation.

It was entirely appropriate for the court to confirm that Justice Samuel Alito’s draft opinion in the Mississippi abortion case, Dobbs v. Jackson Women’s Health, is not at this point an authoritative ruling of the court. There could understandably be public confusion on that point, so it was incumbent on the court to clarify.

But there are unwelcome consequences to even appropriate actions. The obvious one here is that with the court having assured everyone that there is a draft opinion but it is not yet a final ruling, radicals prone to intimidation tactics know that now is the time to act.

Moreover, they have targets. Besides Alito, four conservative justices have been reported as members of a majority that favors overruling Roe v. Wade and Planned Parenthood v. Casey — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

This is why the opinion must be formally issued forthwith. The viability of the court as a deliberative judicial institution is at stake. If the opinion or the vote tabulation were to change in any meaningful way, it would appear that the justices caved to intimidation tactics — which would simply breed more intimidation tactics. We’d have not the rule of law but the law of the jungle.

He points to the "security of the justices,” too, which has been put at risk by leftist agitators calling for protests at their homes. Therefore, he argues, prosecuting the leaker is of paramount importance:

The leak is a corrupt act that was patently intended to influence the outcome of the Dobbs case. That makes it a criminal obstruction of that judicial proceeding. Obstruction is the charge that the Biden Justice Department has brought against some of the most serious Capitol riot defendants, whose corrupt acts were intended to influence and intimidate Congress into changing the outcome of the 2020 presidential election. It is even more clearly applicable to court cases — we don’t call it obstruction of justice for nothing.

He also notes that the leak amounts to theft of U.S. government property in an effort to “defraud the United States” by undermining “the Supreme Court’s regular process for crafting, deliberating and issuing opinions that create binding United States law.” Hence the Court’s deployment of its own marshal is insufficient. He concludes:

Time’s a-wasting. It is not just that leaks get harder to investigate as days turn into weeks and the noise investigators must pierce through gets more intense. The integrity of the court’s processes, the court’s standing as a judicial institution and the security of the justices require a vigorous demonstration that leaks will not be tolerated. They’ll be prosecuted.

Read the whole thing here.

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