Leaking SCOTUS Draft Opinion Overruling Roe Isn’t a Crime, Expert Says

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The amazing escape Supreme Court Justice Samuel Alito’s draft majority opinion has sparked speculation that the person behind the leak could be held criminally liable, but one expert is skeptical that the leak itself violates any law.

“First and foremost, I don’t think there is such a crime,” Orin Kerr, a law professor at the University of California, Berkeley, said on Twitter Monday. “There are criminal laws against leaking classified information, of course. But draft opinions are not classified.”

Supreme Court Building from behind the security fence on Capitol Hill.

SUPREME COURT MOVES TO OVERRULE ROE V. WADE, LEAKED DRAFT OPINION SHOWS: REPORT

Kerr noted that there are also prohibitions against the release of medical records, but noted that no laws that he is aware of fit the Supreme Court leak.

“As far as I can tell, there is no federal criminal law that directly prohibits the disclosure of a draft legal opinion,” Kerr said. “Maybe there should be, but right now there isn’t.”

Some have called for the leak to be investigated as a crime, arguing that a leaked document is a government record that cannot be converted for personal use.

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022, in Washington, following reports of a leaked draft opinion by the court that overturned Roe v.  Wade.

A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022, in Washington, following reports of a leaked draft opinion by the court that overturned Roe v. Wade.
(AP Photo/Anna Johnson)

Kerr does not believe that the leak itself constituted a crime, but he did point out that a crime could have been committed in the process of leaking the materials.

“Although the leak itself is not a crime, there may be a crime somewhere in the big picture,” Kerr said. “For example, maybe someone or some institution hacked into someone’s computer who had a draft of the opinion. Or maybe someone stole a paper copy of the opinion from someone who had a copy. Both are federal crimes.”

While some initial reports indicated that the FBI may be involved in an investigation of the leak, a senior Administration official told Fox News that the laws related to the leaked documents only pertain to classified material and that the FBI has not opened an investigation in this regard.

But Chief Justice John Roberts said Tuesday that he has ordered the Supreme Court’s police chief to conduct an investigation, arguing that the leak is a “treason.”

“To the extent that this betrayal of Court confidences was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement. “The work of the Court will not be affected in any way.”

Chief Justice John Roberts.

Chief Justice John Roberts.
(Julia Nikhinson-Pool/Getty Images)

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“I have directed the court bailiff to launch an investigation into the source of the leak,” he continued.

Kerr noted that there could be consequences for the leaker in addition to criminal penalties, including disbarment.

“There are also non-criminal remedies,” Kerr said. “Obviously, if it’s an employee, the employee would be fired. And if the person is a lawyer, they would presumably be disbarred (or never allowed to become a member of the bar).”

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