The leak of all the draft Supreme Courtroom opinion that will overturn Roe v. Wade, which Politico first printed, is generally unprecedented, however it hardly justifies the overblown pearl-clutching reactions from Chief Justice John Roberts and main Republicans.

Let’s begin with the baseless requires a legal investigation and prosecution by some Republicans. To be clear, the court docket trying into what occurred is anticipated. However as authorized consultants have identified, there is no such thing as a crime within the leaking of a draft court docket opinion except there was proof that it was achieved by one thing like planting a bug or hacking a pc. 

That’s as a result of a leak can’t be prosecuted underneath the statute mostly related to the leaking of delicate authorities info, which is U.S. Code Title 18, Part 641. Part 641 prohibits theft or receipt of stolen authorities info, together with stealing paperwork, however the Justice Division has a selected coverage that legal prosecution underneath the statute is “inappropriate“ if the supposedly stolen property was obtained or was once disseminated to the general public.

Sen. Ted Cruz, R-Texas, one of many loudest voices crying for a federal investigation and prosecution, ought to know higher, on condition that he was a clerk for Chief Justice William Rehnquist and was as soon as the Texas solicitor basic — however then once more, he additionally beforehand known as for the Justice Division to research a Netflix movie. The purpose of that Justice Division coverage is to guard whistleblowers and the media. The leak of this draft opinion would fall squarely inside this prohibition in opposition to legal prosecution.

That is additionally not the primary time the Supreme Courtroom has handled leaks. Details about the super-secret deliberations among the many justices about Roe v. Wade itself was leaked in 1972 to The Washington Submit. And a few authorized analysts thought that inside deliberations over the 2012 choice concerning the Obamacare particular person mandate had leaked, in line with Politico. For an precise legal investigation involving a Supreme Courtroom leak, one has to look again to 1919, when a clerk was investigated and charged with leaking the choices in business-related instances to show a revenue within the inventory market. And even that case by no means went to trial.

Whereas it’s true that it seems that is the primary time a full draft opinion from the court docket has been leaked, a draft of a call — irrespective of how controversial — isn’t remotely just like the storied leaks of categorised supplies. 

For instance: Daniel Ellsberg’s giving the Pentagon Papers to The New York Occasions or Julian Assange and WikiLeaks’ dissemination of details about operations at Guantánamo Bay, Cuba. The Pentagon Papers, a top-secret Protection Division examine of American involvement within the Vietnam Conflict from 1945 to 1967, got with out authorization to The Occasions by former Rand Corp. analyst Ellsberg, and the details about post-9/11 Guantánamo Bay remedy of detainees was additionally categorised materials.

Some court docket opinions may seek advice from categorised supplies, and particular sorts of courts, just like the U.S. Overseas Intelligence Surveillance Courtroom, might subject categorised opinions, however the overwhelming majority of court docket opinions aren’t categorised and are meant for public consumption. The draft choice at subject right here, in Dobbs v. Jackson Girls’s Well being Group, falls into that class.

If the leaker was a judicial clerk, it’s not even clear whether or not the clerk would face any formal bar disciplinary proceedings, given the dearth of clearly relevant authorized ethics guidelines, like attorney-client privilege, for judicial clerkships.

In mild of all of this, why, then, does the chief justice take the step of publicly calling the leak a “betrayal” because the Republican management requires an FBI investigation and Justice Division prosecution? 

For the Republicans, the loud outrage could also be misdirection from the substance of an explosive choice that will take away a constitutional safety that may rally Democrats within the upcoming midterms. For the chief justice, the misdirection could also be a panicky effort to cowl up the deteriorating legitimacy of his court docket within the eyes of the American public.

However Roberts would do properly to do not forget that calling for a leak investigation typically ends poorly for the individual consumed with discovering the leaker. President Richard Nixon’s deal with leaks might have in the end led to the break-in on the Watergate, which led to his resignation underneath risk of impeachment.