WASHINGTON ( Associated Press) — Chief Justice John Roberts, ordering an investigation into a “serious breach of trust” in the leak of a Supreme Court draft opinion on abortion, tasked a relatively unknown court official to do what most What could be one of the high-profile investigations in decades.
A Supreme Court martial has now launched an investigation to try to identify the source of the leak – an almost unprecedented breach of protocol that sent shock waves through the Supreme Court and the Washington legal community.
“This was a singular and serious breach of trust that is an insult to the court and the community of public servants who work here,” Roberts said in the order of the investigation.
But many questions remain about how the investigation will be conducted and whether any federal crimes were committed. There are varying questions about what powers a marshal can use to find the person who leaked the documents.
“While this betrayal of the court’s beliefs was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”
Despite the Biden administration downplaying the government’s ability to seize records from journalists, court martials operate outside that chain of order, opening up the possibility of investigations without the traditional railings to protect journalists’ sources.
Here’s a look at the investigation and how it could play out.
Is this a crime?
It is a matter of legal dispute, but many experts say that bringing a criminal case will be extremely difficult.
“There is no specific statute that makes it an offense to transmit draft Supreme Court opinions or other private court documents,” Renato Mariotti, a former federal prosecutor, said in a tweet.
Still, some lawmakers, notably Republicans in the Senate, have called for a comprehensive investigation and prosecution of the person who leaked the document.
Sen. John Kennedy, R-La. demanded the FBI investigate the leak. and Senate Minority Leader Mitch McConnell, R-Ky. called on the Justice Department to “pursue charges if applicable.” “Illegal action should be investigated and punished as thoroughly as possible,” he said.
Normally, the Department of Justice investigates leaks when classified information is illegally released to the public, but this is not the case here. And while it could be argued that issuing the draft could result in theft of government property, the Justice Department’s guidelines show that prosecution would be unlikely.
Federal law prohibits the theft or obtaining of stolen government information. But Justice Department guidelines say it is “unfair to bring prosecution” under that law if the person had lawful access to information or documents and then used it “for the purpose of disseminating it to the public.”
Who is Marshall investing in?
The court marshal, Colonel Gail A. Curley came to court from the US military and has been on the job for less than a year. As marshal, she wears several different hats overseeing the administrative side of the court. She is the court’s chief security officer, overseeing a staff of about 260 employees, including the police force, which provides justice and security for the Supreme Court building. But he is also the building’s facilities administrator. And when the court hears arguments it is her job to announce the judges’ entry into the courtroom with a traditional cry that includes the phrase “OZ! OZ! OZ!” which means “listen.”
Following the retirement of longtime court marshal Pamela Talkin, Curley resumed her job as marshal in the summer of 2021., The court then said that while working for the military, Curley’s part Duties included providing legal advice and assistance on national security legislation to senior military leadership. His military career included time in Germany and Afghanistan.
Curley graduated from the United States Military Academy and holds a law degree from the University of Illinois College of Law. He obtained two different master’s degrees from military schools.
What does the test look like?
It’s very unclear at the moment. Marshall could investigate himself, but he is probably more likely to help.
The group of people who have access to the draft opinion includes nine court judges, a small number of staff, and some three dozen law clerks, young lawyers who help the justices with their work for a year. Marshall could in principle employ an outside law firm to assist with the investigation. And in other cases involving judicial records, the FBI has occasionally been called in to help.
A Justice Department spokesman said Tuesday that the department had not been asked to help find the person who leaked the document.
All law clerks sign a code of conduct promising confidentiality. A copy of the 1989 code states, “The law clerk should take special care that court documents not available to the public are not taken from the court building.”
An investigation is also likely to focus on how and why the information was leaked, whether it was knowingly provided to Politico by a court employee or inadvertently made available to someone who misled the news organization. A copy of the draft was sent, or a different circumstance occurred.
Can Marshals Seize Journalists’ Records?
maybe. In most cases, however, investigators need to explain why they believe a crime was committed in order to obtain records from companies that will keep telephone or email records.
The investigation is somewhat unprecedented, and the Supreme Court hasn’t looked for anyone leaking information on this scale in the digital age.
The Biden administration has significantly reduced the use of subpoenas and warrants to confiscate the records of journalists in the leak investigation. But since Supreme Court marshals don’t report to the executive branch of government, those restrictions probably won’t apply in this investigation.
In July, Attorney General Merrick Garland formally banned prosecutors from seizing journalists’ records as part of a leak investigation, as the Justice Department – in the Trump administration – reported in The Washington Post, Nation World News and The New York Times. Records related to journalists were obtained. The York Times disclosed government secrets related to the Russia investigation and other national security matters as part of the investigation.
Garland’s policy — which includes limited exceptions to when prosecutors can obtain records — reverses Justice Department policy years ago and aims to address an issue that has long troubled prosecutors the government’s ability to protect sensitive and classified information. Trying to weigh the media’s First Amendment rights against the will.
Supreme Court marshals, however, report directly to the court and the chief justice and would not be subject to those restrictive guidelines. It is not clear whether Marshall or anyone else involved in the investigation may have obtained subpoenas or attempted to collect the records of Politico journalists or others.
Supreme Court marshals have previously issued a subpoena, although one publicly known instance came after a dispute in 1915 where a Civil War soldier took a bequest from Martha Washington, which was later given to a wealthy New York banker. was sold. The state of Virginia later brought the matter to the Supreme Court and summons was issued in an attempt to collect the will.
What will happen next?
it’s hard to say. Roberts said only that he had instructed Marshall to investigate the source of the leak. He did not say how long the investigation would take. He did not say whether it would be limited to the court or would extend to journalists involved in the publication of opinion. And he did not say whether the results would eventually be made public.
Investigations begin during a particularly busy time of year for the court. The judges just finished hearing arguments in the cases at the end of April. They spend May and June completing their work on Rai, and are released before taking their summer break. They return to the bench to begin hearing new cases in October.
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