The Dobbs Leak Is a Crime That Should Be Punished - The American Spectator | USA News and Politics
The Dobbs Leak Is a Crime That Should Be Punished
by
Chief Justice John Roberts in 2018 (CSPAN/YouTube)

The leak of the Supreme Court’s February draft opinion in Dobbs v. Jackson Women’s Health Organization was a political act that proved, redundantly, how thoroughly politics has invaded the court. Equally important is the fact that the leak was a crime that should be prosecuted under federal law.

Central to that drama is that Dobbs would reverse Roe v. Wade if Justice Sam Alito’s draft opinion (which says, correctly, that Roe was “egregiously wrong”) remains the majority opinion of the court. Roe, which created the hitherto unknown constitutional “right” to abortion, is of existential importance to the Democrats. Without abortion “rights” and the claim that Republicans are racists, the Dems have no claim to anyone’s vote.

This investigation will require the cooperation of every Supreme Court justice and every other person among the seventy or so who reportedly had access to the draft decision.

Chief Justice John Roberts issued a statement in which he said the leak was “appalling,” adding that the draft opinion didn’t represent the final or even current opinion of the court. Associate Justice Clarence Thomas later said that the high court wouldn’t be bullied. It remains to be seen if the court is immune to the bullying and direct threats from the liberals.

The leak is not completely unprecedented. The infamous 1857 decision in Dred Scot v. Sandford, which affirmed slavery, wasn’t entirely leaked before it was published but the result was. Similarly, the 1973 result in Roe v. Wade was leaked before publication. In both cases, the political impact of the result was more important to the leakers than the necessity of the court to keep its deliberations secret.

Make no mistake about it: leaks such as the ones in Dred Scott, Roe, and now Dobbs interfere with the independence of the judiciary. Judges can’t function independently without being able to deliberate in secret without government or public interference. The leaker in Dobbs wants public pressure to change the decision. That’s not democracy. It’s mob rule.

The leak was foreseeable because of the liberals’ intense interest in preventing the reversal of Roe.

Democrats have been threatening the justices personally in trying to protect the “right” to abortion created by Roe v. Wade. Talking about a previous abortion case in March 2020, Senate Majority Leader Chuck Schumer screamed, “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” That sounds a lot like direct threat of bodily harm aimed at two justices.

Now the Dems are shrieking about the “necessity” of packing the court in order to reverse the presumed reversal of Roe.

There’s a group calling itself “Ruth Sent Us,” named for the late Ruth Bader Ginsburg, that published the home addresses of some of the justices. “Ruth Sent Us,” and others, are already protesting at the homes of Chief Justice Roberts and Associate Justice Kavanaugh.

As you’d expect, the White House believes those protests are just peachy in the name of free speech. Also, as you’d expect, Virginia Gov. Glenn Youngkin ordered the Virginia State Police to protect the homes of the justices who live in his state. Under Virginia law, picketing at an individual’s home is a crime.

It’s also a federal crime to picket or demonstrate outside a judge’s house with the intent to influence the judge (Title 18 US Code Section 1507). That law won’t be enforced because the Biden regime sides with the “Ruth Sent Us” and others seeking to intimidate the SCOTUS justices and threaten their families.

There were two separate crimes committed by the leaker both of which, depending on the success of the investigation, should be prosecutable.

First is obstruction of justice. Under Title 18 US Code Section 1503, “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate any … officer in or of any court of the United States … or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished as provided in subsection.” The penalty is imprisonment for up to ten years.

By leaking the draft Dobbs decision, the leaker clearly tried to influence, obstruct, or impede the Supreme Court in deciding that case. He (or she) intended to force, by public pressure, some justices to change their votes. Roberts may or may not be part of the majority that presumably includes Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. None of those five are likely to change their votes. Will Roberts?

Second is conversion of government property. Under Title 18 US Code Section 641, “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another … any record, voucher, money, or thing of value of the United States or of any department or agency thereof … shall be fined under this title or imprisoned not more than ten years.”

By leaking that draft decision, the leaker “converted” government property to his own use or the use of another, i.e., the Politico reporter and website that published it.

Don’t forget: under federal case law, criminal intent can be inferred from conduct.

To bring a prosecution under either or both of these statutes, an invasive and intensive investigation will have to be made and completed quickly. Chief Justice Roberts could have called in the FBI to perform the investigation. They could have polygraphed the SCOTUS clerks and other employees and, in all probability, identified the leaker by now. Instead Roberts chose to task the Supreme Court’s marshal to conduct that investigation though the marshal is almost certainly inexperienced and lacking in the resources to do it.

Perhaps Roberts was reluctant to turn the FBI loose inside the court. It usually investigates crimes against the federal judiciary and, while it lost much of its credibility of late, the FBI remains the government’s principal investigative agency. Whatever his reason, Roberts chose to keep the inquiry in-house.

The current SCOTUS marshal is retired Army colonel Gail Curley. She’s a West Point graduate and a former Army judge advocate. Her normal tasks are protecting the justices and the proceedings of the court. Leak investigations are something she probably has no experience in performing.

There are many retired FBI agents and independent lawyers who would be up to the task. (I can think of at least half a dozen who would be eminently qualified.) They can be hired, but can they investigate successfully?

This investigation will require the cooperation of every Supreme Court justice and every other person among the seventy or so who reportedly had access to the draft decision. Some Supreme Court justices themselves, the five who were going to sign the draft opinion — Alito, Thomas, Kavanaugh, Gorsuch, and Barrett — and their clerks should not be suspected, but they, too, will have to cooperate. Those who do not will be suspected, but proving the offense may be impossible.

An investigation such as this won’t be able to compel the justices or anyone else to surrender their cell phones or grant access to their computers at the office or at home. Lacking the power to compel compliance with investigators’ demands may sink the investigation before it starts.

The simplest way to identify the leaker would, of course, to compel the reporter who published it to identify his source, but the reporter would be entitled to refuse under the First Amendment. The SCOTUS marshal — or the people she hires — won’t have the statutory power to subpoena anyone or to put the reporter in jail to compel compliance with a demand for disclosure.

And there is the problem of time. The decision — whatever it finally turns out to be — should be issued in its final form in six or seven weeks. That’s a very short time to investigate a leak. The longer the investigation takes, the more successful the leaker will have been in disrupting the function of the court.

Whatever the marshal’s investigation uncovers should be made public. The leak of the draft decision in Dobbs was an attack on our democracy. It should be investigated, prosecuted, and punished to the full extent of the law.

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