Whomever leaked the Supreme Court draft decision suggesting Roe v. Wade will be overturned probably did not commit a crime.
“No fully-formed draft opinion has been leaked to the press or outside the court [before this],” NPR legal affairs correspondent Nina Totenberg explains. “Once or twice there may have been leaks that say how something’s going to turn out, or after-the-fact that somebody may have changed his or her mind.”
“But this is a full-flown, Pentagon Papers-type compromise of the court’s work.”
In 1973, the original Roe v. Wade decision was reported by Time magazine before the court had formally announced it. The clerk who shared the ruling with a reporter he knew from law school apologized and was not charged or punished.
There is no federal statute forbidding Supreme Court members and staff from telling others about court decisions. While justices may feel hurt that someone working for the court broke the unwritten rule of secrecy around cases under consideration, what harm did the leaker do? After all, the court will rule what the court will rule. If they do, in fact, overturn the landmark abortion ruling, they had to expect passionate public reaction. It just happened a few weeks or months earlier than expected.
Still, there are calls for the leaker(s) to be found and prosecuted. One of the scenarios receiving public consideration involves asking employees to sign a statement saying they did not leak the document. If the person(s) responsible for the leak signed such a statement and is found out, they can be prosecuted for lying to investigators — a felony. That sort of technique, sometimes called a “perjury trap,” is what allowed the Justice Department to relentlessly pursue felony charges against Lt. Gen. Michael Flynn, USA-Ret.
The FBI alleged Flynn lied about talking to Russian officials during questioning in his White House office shortly after he became former President Donald Trump’s National Security Advisor.
Trump ended the long-running prosecution of Flynn when he pardoned the general. With passion high on both sides of the issue, a presidential pardon for the the leaker(s) is unlikely.
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