Roberts said he had authorized the marshal of the Supreme Court to investigate, but he didn't give any details about how the inquiry would proceed. It is not clear if the probe will include a criminal element. Many legal experts said the disclosure was unlikely to amount to a crime. unauthorized disclosures of classified information are the only government leaks that are prosecuted. They say that the culprit would be more likely to face professional consequences than prosecution.
The most urgent question is who will conduct the investigation. Gail Curley was appointed by Roberts last year. She oversees 260 court employees who are tasked with protecting the justices and grounds. The internal police force has limited investigative capabilities. It focuses on providing physical security for justices, employees and visitors and overseeing operations within the Supreme Court building.
The FBI has the resources to aid any internal probe. If the justices want another branch to look into their private communications, then that step would be necessary.
The FBI should interview anyone who had access to the draft, according to some GOP lawmakers. Senior Republicans on the House Oversight Committee wrote to Attorney General Garland on Tuesday, asking for answers on whether leaking a draft Supreme Court opinion during deliberations with the intent to threaten or intimidate members of the Court is a violation of the law.
He said on The Megyn Kelly Show that it could be obstructing the administration of justice.
Roberts could appoint a former U.S. attorney or criminal law expert to lead a special internal investigation, according to Barr.
Problems with the constitutional separation of powers would make it difficult for an executive branch agency to rifling through the communications of Supreme Court justices and their closest aides.
The scope of the investigation is not known. A probe of the small and clubby staff of the Supreme Court would expose them to questions about their phone and email records that justices are rarely, if ever, confronted with. The families and close associates of justices and clerks are likely to be swept up in a thorough investigation.
If there is a serious investigation of who leaked the opinion, are I right that it also includes the Justices and their families?
The circumstances surrounding the draft opinion's disclosure would determine if a criminal predicate exists. The company did not pay to get the document, according to a spokesman for POLITICO.
POLITICO doesn't pay for information or sources, according to Brad Dayspring.
Lawmakers debated the topic of a potential crime during a Senate Judiciary subcommittee hearing. John Kennedy suggested that the DOJ explore the disclosure of the draft opinion, but Sen. Whitehouse said it was unclear what the department would be investigating.
In the past, calls for criminal inquiries have gone unheeded. Richard Painter, a former White House legal czar, called for the DOJ to investigate Edward Lazarus, a former law clerk to the late Justice Harry Blackmun, after Lazarus wrote a book.
Painter said that the book was limited to previous interactions among justices and that it was worse than Alito's opinion.
It is important that leaks are not prosecuted because they are not prosecutable.
If the person is identified, they should face professional consequences.
If a clerk did it, justice could be removed from office.
Chemerinsky was concerned that the investigation could be damaging to the high court.
The leaks investigation is not likely to be successful, and it is unclear whether any law has been violated, so it is interfering with the work of the court.
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