Who has power in Supreme Court investigation?


(NewsNation) —Republican lawmakers are outraged over the leak of a draft opinion from the Supreme Court signaling that the court is going to overturn landmark abortion law Roe v. Wade.

On Monday night, Politico made public a nearly 100-page opinion draft written by Justice Samuel Alito, in which he called Roe v. Wade “egregiously wrong” before going on to explain why the court would be overturning the nearly 50-year-old law. Chief Justice John Roberts confirmed the authenticity of the document Tuesday.

Republican lawmakers called the leak, which is virtually unprecedented in the court’s history, “illegal” and said it was an attempt to “bully” and “intimidate” federal judges to change their stance by utilizing “mob rule.”

Those words, issued in a statement by Senate Minority Leader Mitch McConnell of Kentucky, echo much of what Republicans are arguing after the leak; that this was a political move by Democrats.

Yet, despite the Republicans flaming rhetoric and placing of the blame on Democrats, no one knows who leaked the information.

Chief Justice John Roberts vowed to open an investigation into the matter, which he called “an egregious breach of trust.”

The marshall of the Supreme Court, Col. Gail A. Curley, will lead the investigation. She heads the Supreme Court police who are in charge of security of the court and its justices. She answers to the court directly.

Josh Blackman, a law professor at the South Texas school of law in Houston, told NewsNation that Curley has been “thrust” into a position not typically undertaken by the marshall of the Supreme Court and it is likely the FBI will become involved, as well.

“I think they bring in the FBI, I think they have to,” Blackman said. “If there are interrogations, if they have to do cybercrime forensic work, scan the devices of the law clerks, this has to be done competently and thoroughly and I am sure the FBI will volunteer.”

Interrogations of law clerks and employees of the court are expected, Blackman said, as are forensic analysis of computer systems to see if there were any hacks.

If there was a hack, it could amount to criminal charges, he said.

“If there was a hack, that is someone on the outside hacked the Supreme Court system, that would be a crime,” Blackman said. “If someone stole the opinion, if it was just lying in a desk somewhere and they picked it up and stole it, that might be theft of government property.”

However, if the document was leaked from a clerk who had access to files, it is not clear whether any crime has been committed, Blackman said.

Former Attorney General William Barr argued on Megyn Kelly’s Sirius XM show Tuesday that the crime of obstruction of justice could have been committed by this leaker.

“Obstruction means you’re attempting to influence through some kind of wrongdoing,” Barr said. “I don’t think it’s a stretch.”

“It’s a little rich for Bill Barr to raise this argument because Trump was obstructing everything, but nothing was (considered) obstruction in the Trump years, so I think the obstruction statute is a bit of a reach,” Blackman said. “The more likely repercussion is public shaming.”

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