(The hill) – Calls from high-ranking Republicans to the Justice Department (DOJ) to launch its own investigation into the leak of a Supreme Court draft opinion worry those who say the Justice Department will blur the separation of powers in pursuit of something that may even it is not a crime.

The leak sparked a series of finger-pointing and appeals to the chapters following the publication of a draft opinion that would overturn Rowe v. Wade.

While the chief judge John Roberts has ordered an investigation by the court marshal, some GOP lawmakers are concerned it will not be adequate.

“This illegal act must be investigated and punished as fully as possible, as fully as possible,” the Senate Minority Leader said. Mitch McConnell (R-Ky.) Said during a speech Tuesday.

“I am sure the chief judge will try to get to the bottom of this. If a crime has been committed, the Ministry of Justice must prosecute him completely, “McConnell added.

Since then, 21 Republicans in the House of Representatives have sent a letter to the Attorney General Merrick Garland demanding the involvement of the Department of Justice and the FBI, stating that the source may have violated a law prohibiting the removal of records belonging to a judicial officer and that “immediate criminal investigation is clearly justified.”

The Ministry of Justice has a long history of involvement in leak investigations, but such work has usually only followed the disclosure of information that has some component of national security.

Asked about the prospects for prosecuting the Ministry of Justice, Liz Hempovic, policy director at the Government Oversight Project, asked: “What crime?”

“From what we know so far, if someone who has worked in the court has gained access to the opinion and has chosen to expire it, the documents of the Supreme Court are not classified information. So, as far as I know, there is no crime that can be prosecuted, just in the leak of information, “she said.

The Supreme Court’s Code of Conduct requires lifelong secrecy about the court’s internal work, something experts say makes it a violation of working conditions rather than a crime.

“The one who ran out without questions committed a fire crime. The idea of ​​a criminal investigation is much weaker, “Bradley Moss, a national security lawyer, told The Hill by email.

Some experts have focused on charter which allows for the prosecution of anyone who “appropriates, steals, steals or knowingly transforms” a record.

Moss said the statue was “the only realistic criminal angle” if it was assumed that there was no bribery or hacking in the leak.

“However, the internal leadership of the Ministry of Justice states that they will refrain from considering the issue if the only” stolen “is the information itself (as a draft decision) and the purpose of the theft was to spread it to the public. That seems to rule out the possibility of indictment in this case, “he said.

Republicans in the House of Representatives focused on a separate statute which focuses on anyone who “illegally conceals, removes, mutilates, deletes or destroys” records that are “filed or deposited with any clerk or employee of any court in the United States.”

“Whoever disseminated this draft opinion has caused serious damage to the reputation of the Supreme Court and must be held accountable quickly to the fullest extent of the law,” wrote Representative John Rose (R-Tenn.) In a letter with him. colleagues.

But Moss said the prosecution under such a status would accept that access to the document is unauthorized, something that may not be the case if the source is a clerk.

Even if there are grounds for an investigation, it is not clear which of the two entities wants the executive to be involved in the litigation.

The Supreme Court has long valued its privacy and independence, part of the reason the leak was so remarkable, while the Justice Department has recently been stepped up to monitor its investigation into leaks and has vowed not to call in journalists again.

“I suspect that a Supreme Court judge will raise some concerns about the separation of powers,” Hempovic said.

“I want to say that we have to fight to get telephone access to oral disputes. They are not just open to public scrutiny or inspection at all, “Hempovic added.

Garland has so far avoided the possible involvement of the Ministry of Justice.

“The chief justice has announced that the court marshal will conduct the investigation,” he said.

It is unlikely that the Ministry of Justice will make such a move without an invitation.

“There will be a serious division of powers if the Ministry of Justice starts delving into the internal work of the Court. This is no doubt why Chief Justice Roberts is in charge of the Marshal, who is currently investigating. “If they find something that is legally worthy of criminal investigation, they can always take it to the Ministry of Justice at this time,” Moss said.

A possible middle ground may be for courts to seek technical assistance from the FBI in conducting an investigation.

The Supreme Court will probably conclude very quickly that they do not have the resources – by that I mean people with experience, knowledge, etc. – to conduct the kind of rigorous, high-visibility investigation required here, “said David Seide, a lawyer with the Government Accountability Project, who has spent years working on internal investigations both inside and outside the federal government.

“It’s like being asked who Deep Throat is. That requires a serious investigation, “he said, citing a source in the Watergate saga.

The marshal’s investigation will have to go beyond conducting interviews with staff to assess even the details of the scanned document.

“They need people with technical expertise and forensic skills who are probably not in the Supreme Court,” Seide said.

“Which organizations have this skill set and are good at investigating?” “Obviously the FBI has it,” Seide added.

Some lawmakers have been open to hope that the FBI is what ultimately conducts court interviews.

“We have yet to find out what our Department of Justice consists of,” Senator John F. Kennedy (R-La.) Said this week.

“Anyone who has had access to this leaked document will receive a visit from the FBI. And the person who issued this document will have to either tell the truth or lie to an FBI agent who subdues them. [to] prosecution. So let’s hope our Department of Justice does its job, “Kennedy added.

Democrats say their Republican counterparts should be more concerned about the contents of an expired draft than the fact that it has been shared with the public.

“I don’t care how the draft ended. This is a side effect, “wrote in a tweet the chairman of the Intelligence Committee of the House of Representatives, Adam Schiff (D-California). “What interests me is that a small number of conservative judges who lied about their plans to the Senate intend to deprive millions of women of reproductive care.

Hempovic expressed concern that intensive scrutiny could prevent others from sharing concerns about abuses or abuses elsewhere in government.

“This kind of investigation to find out the source has a chilling effect,” she said. “This idea of ​​persecuting this man with his identity is not good from the point of view of public policy.


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