Bizarre Twist in Federal Leak Investigation

As reported by The New York Times:

The Justice Department is pursuing a criminal investigation into who leaked the Supreme Court’s 2022 decision overturning the right to abortion, examining the inner workings of an institution that has long operated in secrecy and resisted oversight from the other branches of government.

At issue is who provided the draft decision to Politico two months before it was formally released by the court, a seismic breach of confidentiality that led to intense partisan accusations about the motivations of the leaker.

Despite an internal inquiry by the court, no leaker has ever been publicly identified. An F.B.I. official said last year that the Justice Department was exploring the issue.

More than four years after the unprecedented breach, the question of who leaked the document – and whether that person broke the law – is finally getting another look.

For anyone who needs a refresher, the controversy began in May 2022, when Politico published a leaked working draft of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization – a case the ACLJ was engaged in as well. The leaked draft was substantially similar to the final ruling, which overturned the constitutional right to abortion established under Roe v. Wade.

The Supreme Court has traditionally operated with a considerable degree of confidentiality, particularly in its internal deliberations. The publication of the draft not only disrupted that process but also contributed to an increasingly hostile atmosphere surrounding the Court and the safety of its members. Several conservative Justices faced protests, threats, and security concerns in the months that followed.

At the time, the Supreme Court conducted its own internal investigation, including an examination of its staff and security procedures. However, that investigation failed to publicly identify the person responsible.

Justice Samuel Alito recently told Fox News that he has an opinion about who the leaker was, but  that there’s not enough evidence to pursue legal action. For a while, it appeared like the matter would simply fade away without an answer, without anyone being held accountable. 

Now the DOJ is reportedly pursuing a criminal investigation. Of course, there are some interesting legal questions here; for starters, investigators have not publicly identified which specific federal laws may have been violated. Several potentially relevant offenses carry five-year statutes of limitations, meaning the timeline could become an important factor as the investigation moves forward, as this happened in 2022, and we’re now at the end of 2026. The window seems to be closing.

There’s also a somewhat unusual constitutional dimension. The DOJ is part of the Executive branch, while the Supreme Court is part of the Judicial branch. Any criminal investigation involving an alleged breach within the Court itself raises questions about the separation of powers and how far the Executive branch can go in pursuing alleged misconduct inside another branch of government.

Not to mention, what happens if charges are eventually filed? A case could ultimately make its way through the federal court system and be elevated to the Supreme Court, potentially raising questions about whether the Court could review a case connected to its own internal operations.

Beyond the legal questions, there’s also a more basic issue of accountability. Was this simply an extraordinary breach of workplace confidentiality, potentially grounds for dismissal, or did this individual (or individuals) cross a line into criminal conduct? And regardless of the legal outcome, what responsibility comes with releasing confidential information that could put public officials and their families at risk?

Hopefully, the renewed investigation will finally bring some clarity to one of the most unusual episodes in the modern history of the Supreme Court.

Today’s Sekulow broadcast included more discussion of the news that the DOJ is heading up a probe into the leak of the Supreme Court opinion that ultimately led to the overturning of Roe v. Wade.

Watch the full broadcast below: