The leak of a draft Supreme Court opinion overturning Roe v. Wade not illegal, experts say

WASHINGTON – The blockbuster leak of a draft Supreme Court opinion in a high-profile abortion case is probably not illegal, according to legal experts.

The leak to Politico revealed a draft opinion Monday from Associate Justice Samuel Alito that would overturn the landmark Roe v Wade ruling of 1973, which established a constitutional right to abortion, as well as the subsequent Planned Parenthood v. Casey decision that affirmed the ruling.

The leak violated the high court's customary confidentiality in developing and circulating opinions while deliberating. Chief Justice John Roberts launched an investigation. Senate Minority Leader Mitch McConnell, R-Ky., said the leaker should be punished to the full extent of the law.

Likely punishments include firing or disbarring the leaker, officials said.

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Michael Mukasey, a former attorney general in the George W. Bush administration, called the leak "dishonorable" but not illegal.

"Law has a moral component. This is morally wrong,” Mukasey said. “But not everything that is morally wrong is unlawful."

Politico reported Monday that Alito's draft had five supporters on the nine-member court. Other members could be writing opinions and dissents that could change the vote and the text of the ruling before it is issued.

"Roe was egregiously wrong from the start," Alito wrote in the draft. "We hold that Roe and Casey must be overruled."

Roberts confirmed the authenticity of the draft Tuesday and directed the marshal of the court to launch an investigation. Roberts said the confidential circulation of draft opinions is routine and essential for court deliberations.

"This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here," Roberts said in a statement.

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McConnell called for an investigation to determine whether a crime was committed.

“This lawless action should be investigated and punished to the fullest extent possible," McConnell said. “If a crime was committed, the Department of Justice must pursue it completely."

The Justice Department declined comment.

Barbara McQuade, a former U.S. attorney in Detroit, said she believed there is no basis for a criminal investigation.

"The leak does not involve any classified information, which is protected from disclosure by criminal laws," McQuade said. "Chief Justice Roberts has issued a statement indicating that he has asked the court’s marshal to conduct an investigation, but that is for internal purposes. An employee who leaked could be terminated but probably not charged with any crime."

Edward MacMahon, a lawyer who has defended clients facing a range of national security, espionage and terrorism charges, also saw no crime.

“It’s an outrageous breach of trust, but I don’t think there is any crime involved,” MacMahon said.

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Federal law prohibits the theft of government documents, but the Justice Department issued a policy not to pursue charges when a government employee "reveals a government document to which he or she gained access lawfully or by non-trespassory means" or when a journalist receives the document "motivated primarily by the interest in public dissemination."

Renato Mariotti, a former federal prosecutor, did not dismiss the possibility of charges – if the document was stolen or the leaker sought to profit from it.

“It is not inconceivable that the leak could be prosecuted, depending on the circumstances,” Mariotti said. “But if the leaker had legal access to the opinion and provided it to a journalist without receiving compensation, I’m skeptical that any prosecution – if possible – would be successful.”

David Pozen, a Columbia Law School professor, said his research found that the federal government infrequently pursues criminal investigations even for leaks of classified information.

“First, and most significantly, even though the Espionage Act of 1917 and other statutes broadly criminalize the gathering, receipt, and dissemination of national defense-related information and even though every modern president has decried the practice, an enormous amount of leaking to the press appears to go unpunished,” Pozen wrote in a December 2013 Harvard Law Review paper. “The federal government has brought roughly a dozen media leak prosecutions in the ninety-six years since the espionage act was enacted.”

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Civil and administrative sanctions for leaking nonclassified material “are only marginally more common,” wrote Pozen, who clerked for Associate Justice John Paul Stevens.

“Given that context, the idea that there would be a federal prosecution for a leak of non-classified information” – such as the Supreme Court abortion case draft – “would be extraordinary,” Pozen said.

Kevin Goldberg, a First Amendment specialist at the Freedom Forum, said if the document wasn’t classified or stolen, there is little cause for prosecution.

“It’s always possible to prosecute; whether you could win that prosecution is different,” Goldberg said.

Although leaking the document probably wasn't illegal, Sen. John Kennedy, R-La., said lying to the FBI about the leak could yield charges. He said a limited number of people had access to the document and each one should be questioned by the FBI, to set up potential perjury charges.

“We’re about to find out what the United States Department of Justice is made of, because it can find this leaker if it wants to," Kennedy said. "Once that leaker is found, that person should be fired, that person should be disbarred, that person should be the defendant in whomever cares to bring a civil lawsuit, and that person should be prosecuted."

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Sen. Sheldon Whitehouse, D-R.I., questioned whether the FBI has authority to investigate potential criminal activity within the court, but Kennedy said the FBI could assist the court’s marshal.

“I guess we’ll begin by trying to identify what law that person might have violated,” Whitehouse said.

Sen. Josh Hawley, R-Mo., who clerked for Roberts, said the leaker should be disbarred if the person is a lawyer.

"That court can't function without basic confidentiality," Hawley said. "This is really serious."

This article originally appeared on USA TODAY: Supreme Court leak of draft Roe v. Wade opinion likely not illegal