The Supreme Court Leaker Shall Be Found. Here’s Why

The leak of a draft decision that would reverse Roe v. Wade has stunned Washington and rocked a Supreme Court long proud for the security for internal deliberations.

Liberals claim conservatives within the court, or its staff are responsible. The reasons they suggest are two fold. First that the leak locks in the majority vote to the decision because any change now would look to be influenced by the leak and fallout from it. Second, to allow reaction to the decision to dissipate before it is real, or at least official.

Conservatives claim liberals within the court did it. Their reasons seem more difficult to understand. But theories include that it was to influence Republican primaries, and to jump start the liberal backlash for this year’s midterm elections. Why liberals would care about a decision popular within Republican primary voters is difficult to understand, as is why the timing in May would matter for November elections for a decision that would otherwise likely have been released in a month.

I don’t know who did it, or why. However, I think we will know fairly soon, here’s why.

The Chief Justice is, understandably, extremely upset about this leak that threatens the integrity of the court’s internal deliberations. He has directed Marshal of the Court to investigate. Such investigation will focus on a fairly limited population of clerks, and a few other Supreme Court staffers, who could have been responsible. The Marshal will approach them and ask if they did it.

Those answering will face a dilemma. To answer falsely, even if not under oath, violates 18 U.S.C. § 1001. Interestingly, the leak itself while not necessarily a crime, lying about it certainly would be. So why commit a crime by lying about a non-crime?

Of course, the legal career for the leaker is done. But that’s less a concern than prison for violating the felony above.

Further, the lie is not risk free from detection. Politico, which published the leaked document, knows who its source is. Which creates an interesting question. Suppose the Supreme Court, perhaps Chief Justice Roberts himself, subpoenas Politico for its source. Who can Politico appeal to if the Supreme Court itself is effectively a party to the case?

The Supreme Court clerk, or other staffer, faced with the dilemma of this inquiry would almost certainly be as aware of this issue as I am. This person could, of course, refuse to answer, pleading the 5th, but that would out him or her as surely as confessing. The ramifications to their employment on the Supreme Court, and their legal career, would be the same. The 5th Amendment would also not protect them from disciplinary action by the Bar.

The answer to the question of who is responsible for this leak will be interesting, but I believe it will be answered.