It would be difficult to cite a greater American public interest than conducting a criminal investigation into the Supreme Court leak. The current security of judges and the long-term viability of the court as an institution depend on it.
It was entirely appropriate for the court to confirm that Judge Samuel Alito’s draft opinion in the Mississippi abortion case, Dobbs v. Jackson Women’s Health, is not at this point an authoritative decision of the court. There could of course be public confusion on this point, so it was up to the court to clarify.
But even appropriate actions have unfortunate consequences. The most obvious here is that with the court having assured everyone there was a draft opinion but not yet a final decision, the radicals prone to bullying tactics know that now is the time to act.
Moreover, they have goals. Besides Alito, four conservative justices were reported as members of a majority in favor of overturning 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 given formally without delay. The viability of the court as a deliberative judicial institution is at stake. If opinion or vote tabulation were to change significantly, it would appear that the judges have caved in to bullying tactics – which would only multiply the bullying tactics. We would not have the rule of law, but the law of the jungle.
Equally important, the safety of judges is at risk. Until the decision is formally issued, the radical left – people who destroy norms such as judicial confidentiality, those who swear to “burn” if they don’t get what they want – will believe that she can still change the outcome by intimidating one or more of these five judges.
This is the seriousness of the situation and why absconding should be considered a criminal offense worthy of investigation, prosecution and imprisonment.
The leak is an act of corruption that was clearly intended to influence the outcome of the Dobbs case. This makes it a criminal obstruction of this legal process. Obstruction is the charge Biden’s Justice Department has leveled some of the most serious defendants in the Capitol riots, whose corrupt acts were intended to influence and intimidate Congress into altering the outcome of the Capitol riots. the 2020 presidential election. It applies even more clearly to court cases — we don’t call it obstruction of Justice for nothing.
It should also be noted that magistrates, their clerks and administrative court staff who support judicial operations are not private actors. They are civil servants and government employees. The records they generate, including draft opinions that are refined into eventual decisions, are not their private property. These records belong to the United States.
Under federal law, it is a crime to misappropriate government records or convert them for one’s own use. The funder, who took the draft notice – government property – and released it outside of established court processes to someone not authorized to access it, stole a file and converted it to his own political ends. It’s a crime.
Finally, federal law has long criminalized conspiracies to defraud the United States. According to the long interpretation of the Supreme Court, fraud in this context is not limited to schemes aimed at extracting money or goods from the government. This includes deceptive acts that are intended to, and may have, the effect of undermining government processes. Here, the leak was specifically aimed at undermining the Supreme Court’s due process to craft, deliberate, and issue opinions that create binding US law.
So there are myriad solid grounds for investigating the flight as a federal crime. The Department of Justice and the FBI must carry out such an investigation. Although it is welcome that the court has consulted its marshal and affirmed its determination to shed light on this betrayal, the judges simply do not have the institutional means to carry out investigations. It’s not their job.
This is the job of executive law enforcement agencies. It is also the job of Congress to investigate corruption in government processes, including judicial processes, for which the American people pay trillions of dollars a year. Political branches have the power to subpoena and other investigative authorities to gather evidence. They must use them.
Time is lost. It’s not just that the leaks are getting harder to investigate as the days turn into weeks and the noise investigators have to break through becomes more intense. The integrity of the Court’s processes, the Court’s position as a judicial institution and the safety of judges require a strong demonstration that leaks will not be tolerated. They will be prosecuted.
Andrew C. McCarthy is a former federal prosecutor.
New York Post