Legal experts say leaking Supreme Court draft likely not a crime

Politico caused an uproar this week when it revealed that five of the Supreme Court’s nine members appear ready to overturn Roe v. Wade.

That’s based on a leaked draft opinion the website published on Monday. While some are now calling for the leaker to face criminal charges, some legal experts say that’s unlikely to happen. 

Supreme Court drafts not classified

One of them is Texas-based attorney Omar Ochoa, who told the Washington Examiner on Tuesday that Supreme Court drafts are not considered classified documents.

“There are certain agencies where disclosure of confidential information is actually a crime, like national security information, but I’m not aware of anything like that in the Supreme Court in terms of disclosing confidential information,” Ochoa was quoted as saying.

He explained that there could be scenarios in which the leaking of a draft opinion could lead to legal consequences, such as “if somebody were to use information from the Supreme Court on a corporate matter.”

However, since that isn’t the case in this instance, Ochoa is not convinced that the culprit is at risk for criminal liability.

He added that “if it’s one of the law clerks, for example,” then “losing their employment would probably be the most straightforward outcome of the investigation if they were found out.” However, Ochoa did acknowledge that the individual may lose his or her license to practice law.

“Doing things against your clients, best interests, you know, committing an affront on the integrity of the court system,” he stated. “I mean, these are all things that could lead to disbarment”

Sen. Mitch McConnell wants leaker “punished as fully as possible”

Meanwhile, Bradley Moss is a national security and whistleblower lawyer who agrees that the chances of anyone being prosecuted over the leak seem remote.

“Could they theoretically get away with that as sufficient predicate?” Moss was quoted by the Washington Post as saying. “I guess, in theory, they could. It’s just a serious stretch.”

However, that hasn’t stopped conservatives from calling for a criminal investigation; they argue that the leak was orchestrated in order to use the threat of violence and disorder to intimidate the Court.

The Examiner noted that Senate Minority Leader Mitch McConnell called for action on Tuesday, saying, “This lawless action should be investigated and punished as fully as possible.”


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