Attorney General and FBI Must Investigate the Alito Draft Abortion Opinion Leak

CJ Roberts' Quasi Investigation Leaves The Culprit to again violate 18 U.S.C. sec 1905

It is now nearly a year since the unprecedented leak of the Alito Draft Opinion in the Dodds abortion case which overturned the fifty year-old precedent of Roe v. Wade. Chief Justice Roberts commissioned an investigation of the leak by the Court’s Marshall, but though the Marshall did an apparently thorough investigation of Clerks, Law Clerks and other Court staff, she neglected to actually interview the most likely suspects: The Justices of the Supreme Court. All of them had opportunity, access, and perhaps a motive, but the CJ Roberts investigation did not conduct real investigative interviews with any of the Justices.

I have previously written about my own amateur detective work and my strong suspicion that it was Justice Thomas who gave the Alito Draft Opinion to his politically active wife, Ginni, and she gave it to Politico for publication. But my views are only a well-founded suspicion, and I have no proof.

But this is a very serious matter regardless of your views on abortion. Never before has a draft opinion of momentous import been leaked to the public before the actual decision. The sanctity of the judicial process was broken.

Whoever leaked the draft opinion, and anyone abetting the leaker, appeared to violate a criminal statute, 18 U.S.C. Sec. 1905 which is entitled “Disclosure of Confidential Information Generally.” This Criminal Statute seems to fit the crime of release of a confidential draft Supreme Court Opinion. Section 1905 states:

Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Federal Housing Finance Agency, or agent of the Department of Justice as defined in the Antitrust Civil Process Act ( 15 U.S.C. 1311-1314 ), or being an employee of a private sector organization who is or was assigned to an agency under chapter 37 of title 5, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment. (emphasis added).

Now lets suppose that a real, intensive investigation of everyone who had access to the draft Alito Opinion is undertaken not by the Marshall of the Court, but rather, by the Department of Justice and the FBI, and let’s suppose that the investigation finds that the leaker was one of the Justices. That Justice, and anyone aiding or abetting him or her, could be liable to criminal prosecution with a fine and imprisonment for no more than a year.

But of particular interest is the penalty in the last sentence that the offender “shall be removed from office or employment.”

Now Justices of the Supreme Court are employees and/or officers of the United States. We pay their salaries and reimburse their appropriate expenses. So, if the investigation by the Department of Justice and FBI revealed that the leaker of the Alito draft opinion was one of the Justices, that Justice could be, by order of a Court having jurisdiction, removed from office or employment.

The Justice would not have to be impeached, as the violation of 18 U.S.C. Sec. 1905 has its own independent remedy and penal provisions, and an Order of a Court with criminal prosecution jurisdiction could not only fine and imprison the Justice but could order his/her removal from the Supreme Court: a mandatory judicial ordered retirement and removal from office. Of course, the Justice could appeal.

The leak of the draft Alito Opinion was a very serious event no matter what ones’ views on abortion.

But as in the latest ethical breaches and failure to file income and gift disclosures, we cannot rely on the Supreme Court to police itself as is evident by the non-conclusive investigation by the Court’s Marshal at the behest of CJ Roberts. Of course it is possible that the Marshall told the Chief Justice more about the investigation than was made public, but we just do not know if that is true or not.

Without a real, intensive Justice Department and FBI criminal investigation, the leaker will escape any penalty for this serious breach of confidential documents. Perhaps a Special Counsel is in order as is Attorney General Garland’s frequent practice. But whoever performs it, a deep intense and thorough investigation, including all the Justices, needs to be undertaken.