Conservatives Call For Supreme Court Leaker to Be Prosecuted. But Did They Commit a Crime?

In a bombshell story published Monday night, Politico revealed the Supreme Court is prepared to overturn Roe v. Wade, a move that would end federal constitutional protections of abortion rights and allow states to determine for themselves how to regulate the procedure.

“We hold that Roe and Casey must be overruled,” Supreme Court Justice Samuel Alito wrote in the draft majority opinion, which was confirmed as authentic by the court on Tuesday. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The consequences of overturning Roe v. Wade are far reaching. It would make abortion immediately illegal in at least 13 states. One estimate reported by the New York Times predicted 24 states in total would likely outlaw abortion.

The massive scoop was reported by Politico’s Josh Gerstein and Alexander Ward, who acknowledged the unprecedented nature of the leak itself in their story.

“No draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” they wrote. “The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.”

While supporters of abortion access decried the draft opinion, many conservatives focused their ire on the leak itself, which is under investigation by the Supreme Court.

In an editorial, The National Review decried the leak and called for “full-blown investigations to identify and hold any leakers accountable.”

“The leak is intolerable and cannot go unpunished,” the editors wrote.

Some on the right went a step further. Ben Shapiro — in a tweet arguing the leak was “designed to create threat to the life and limb of any justice who signs onto the majority opinion” — called for the leaker to be prosecuted.

“I hope whoever is responsible for this is not only fired instantly, but is prosecuted and serves real jail time for violating the confidences of the Supreme Court,” said Sen. Ted Cruz (R-TX).

Sen. John Kennedy (R-LA) seconded that opinion, while Sen. Mitch McConnell (R-KY) said criminal charges should be pursued “if applicable.”

There is little question that this leak is designed to create threat to the life and limb of any justice who signs onto the majority opinion. Prosecution to the full extent of the law.

— Ben Shapiro (@benshapiro) May 3, 2022

The thing is, there may not be a crime to prosecute.

“Leaking a Supreme Court decision is not a crime,” former federal prosecutor Renato Mariotti wrote on Twitter in response to Shapiro.

He explained further in a comment to Mediaite: “It is conceivable that the leaker could be prosecuted, depending on the circumstances of the leak, but it is unlikely that any prosecution would be successful if the leaker already had legal access to the opinion.”

Orin Kerr, a law professor at the University of California, Berkeley, said he did not think leaking a draft opinion was a crime, pointing out that draft opinions are not classified.

“As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion,” he said.

Kerr did note, however, that other crimes could be implicated in the conduct surrounding the leak.

George Washington University Law Professor Jonathan Turley also argued the leak likely does not constitute a crime in an appearance on Fox News Tuesday morning.

“You could try to create some type of attenuated criminal theory like theft, but it’s not generally viewed as a crime,” Turley said. “You could try to frame it as a type of theft, but it’s usually been treated as an unethical act and in this case would result in a disbarment if this person is a lawyer.”

Turley said the leak could result in a crime, however, if the leaker lies to the FBI about their actions.

“There’s a relatively small number of people with access to these opinions. The FBI is going to interview all of them in short order. When this individual is interviewed, they will have to make a choice. If they lie to those FBI agents, this will be converted from an unethical act to a criminal act because under a statute that is 18 U.S.C. 1001, it is a crime to lie to federal investigators.”

Watch above, via Fox News.