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Douglas Andrews / June 3, 2022

What About That Supreme Court Leak Investigation?

The perpetrator of a calamitous breach of security within the Supreme Court has yet to be caught. What’s taking so long?

Yesterday marked the one-month anniversary of what may well be the greatest and most consequential breach of confidentiality in Supreme Court history: the leaking of Justice Samuel Alito’s February 10 draft of a decision in the Dobbs v. Jackson abortion case weeks before the ruling was to be handed down.

Not surprisingly, the leak caused a chaotic and hysterical reaction by pro-abortion zealots on the Left, and it resulted in mob terrorization of Supreme Court justices and their families in their DC-area homes. The High Court building itself has been surrounded by an eight-foot fence, similar to the one that surrounded the U.S. Capitol following the riots on January 6, 2021. As SCOTUSblog opined at the time: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”

Indeed, Chief Justice John Roberts said of the leak, “This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” and he directed the Marshal of the Court to launch an investigation into the source of the leak.

Ah, yes, “the leak.” Whatever happened to that investigation anyway? It’s been a month, after all, and we haven’t heard a word about any progress. Which makes us wonder: Just how serious is the High Court when it comes to catching this culprit? Heads ought to roll, right? Consider the source, but as CNN reported in an “exclusive” this week:

Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits. … Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel. … Chief Justice John Roberts met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.

If certain folks are getting nervous about their phone records, perhaps it means that the investigators are over the target. As The Hill reports, “Some legal experts argue that the Supreme Court leaker may have committed a federal crime by leaking the draft decision, but others say it was an ethical breach more likely to result in the leaker’s firing or disbarment.”

Or perhaps it’s not the phone records that are of most concern to the leaker. Perhaps it’s the prospect of having to go on record legally. “The affidavit may be a greater concern for the leaker,” says constitutional law professor Jonathan Turley. “After all, the leaker may have avoided using the cellphone or creating digital tracks. The affidavit is a sworn statement to federal investigators. If false, it could constitute a federal crime.”

Conviction of such a crime would seem to be a death blow to one’s budding legal career. And given the gravity of the offense, that wouldn’t seem to be all bad.

We’re not sure what’s taking so long to find the leaker, but a message must ultimately be sent: This was a grievous breach, and it was an attack on an American institution. It cannot stand.

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