SCOTUS abortion leak: Who had access to the draft? Is this a crime?

(NewsNation) — An unprecedented leak from the Supreme Court sent shockwaves across the country, and now, the nation’s highest court is investigating how the draft opinion was leaked.

The draft opinion in question suggested the Supreme Court is set to overturn the landmark Roe v. Wade case that legalized abortion nationwide. Chief Justice John Roberts confirmed the authenticity of the draft opinion Tuesday and said he had ordered an investigation into what he called the “egregious breach of trust” in leaking the draft document. A legal expert weighed in on “Morning in America,” saying the leak may not be considered a crime.

“The actual document —  the draft is not a classified document. So the crime would come in, if the attorneys meaning the law clerks, are questioned, and they are not truthful in terms of what the information they have,” criminal defense attorney Karen Nance said Wednesday. “That would be able to be prosecuted. But if they were hacked in by somebody outside, then it would be more in the category of being a theft-related crime.”

The pool of potential leakers is broad, especially when the possibility of hacking is raised.

“We know that each of the Supreme Court justices have up to four law clerks. So we’re talking nine times four, that’s at least 36 people. But the issue is whether it came from internally, or was there some type of computer hack or something where someone from the outside was able to access those computers and obtain the draft,” Nance said. “So those people that have access to immediate access will be scrutinized by the marshal, and then the labor is the act of going through each and every one of the computers to see if hacking is a possibility, as well.”

But a former federal prosecutor tells “NewsNation Prime” on Wednesday that if the intent was to obstruct justice, the culprit could face charges.

“It can range anywhere from obstruction, if the intent was to obstruct the process, theft of government property — we’ve seen those crimes filed before — perhaps a concealment or removal of government property but it’s really an internal investigation right now being conducted by the marshals of the Supreme Court,” David Weinstein said.

And when it comes to looking for a suspect, Weinstein says no one is off the hook, even the justices.

“I think you start with the judges and their chambers and their clerks, much like you would start in a corporation,” Weinstein says.

“So it’s going to move on much like any traditional investigation would move forward,” he continued.

A pair of former Supreme Court clerks said on NewsNation’s “On Balance with Leland Vittert” that the real surprise is not that a sensitive document could be leaked from the nation’s highest judicial authority — it’s that somebody would actually do it.

“I can’t imagine that happening when I was there,” Radhika Rao, a former clerk for Supreme Court Justice Harry Blackmun, said Tuesday. “No one, at the time, could have imagined something like this happening.”

Ian Samuel remembers a message the late Justice Antonin Scalia gave while he clerked for him.

“It was: ‘If you ever betray the confidences of these chambers, I will do everything in my power to ruin your career,’” Samuel said. “And he let it hang there for a moment and you can tell and he moved on, and he didn’t have to say it twice,” he continued.

But Samuel and Rao say the court operates openly among justices and their clerks. The opportunity is there to leak information. Reverence for the institution demands you do not.

“They could have a draft and they could walk out of the building with it,” Rao said. “Or if they have access to a file, perhaps they could even have it on their laptop and have access to it that way.”

There are risks to the leaker if it was done digitally. Samuel points out an employee’s computer activities might be traceable. Rao added friends and family of Supreme Court workers could also be behind the leak

There have been leaks before, though not of the apparent magnitude of the document posted by Politico. In 1973, for example, Time magazine’s David Beckwith reported on the outcome of Roe v. Wade before the decision was published. But because the magazine was a weekly, Beckwith’s scoop arrived just hours before the decision was made public.

Neal Katyal, who has argued dozens of cases before the court and as a young lawyer worked for Justice Stephen Breyer, compared the apparent leak to The New York Times’ 1971 publication of the government’s secret history of the Vietnam War, known as the Pentagon Papers.

“This is the equivalent of the Pentagon Papers leak, but at the Supreme Court. I’m pretty sure there has never ever been such a leak. And certainly not in the years I’ve been following the Supreme Court,” Katyal wrote on Twitter.

The widely followed SCOTUSblog wrote on its Twitter account: “It’s impossible to overstate the earthquake this will cause inside the court, in terms of the destruction of trust among the justices and staff.”

These interviews were edited for clarity and length.

The Associated Press contributed to this report.

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