The Supreme Court appears to be ratcheting up its investigation into the leaking of the draft opinion in Dobbs v. Jackson Women’s Health Organization. According to CNN, the Court is asking clerks to provide cell phone records and sign affidavits. Some of us have been surprised by Chief Justice John Roberts’ decision not to ask for assistance from the FBI, which is the world’s leading law enforcement agency on computer and forensic investigations. Yet, the affidavits may come with the most worrisome change for the leaker. Once signed, the leaker will reaffirm his or her potential criminal liability.
The cellphone records raise obvious privacy concerns. Communications with Politico or intermediaries can be masked or concealed as casual or personal exchanges. An email entitled “Leaked Confidential Dobbs Draft” is not likely to exist. That means that any meaningful review would require a broader review, creating challenges in how to filter messages and emails.
The affidavit may be a greater concern for the leaker. After all, the leaker may have wisely avoided using the cellphone or creating digital tracks. The affidavit is a sworn statement to federal investigators. If false, it would establish that a federal crime has been committed. Under 18 U.S.C. 1001, it is a federal crime to knowingly and willfully make a materially false, fictitious, or fraudulent statement in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States. While there were possible criminal claims that could have been brought based on the leak, this makes such criminality clear and undeniable.
That would mean that any doubt would be removed for the leaker. If he or she were to go public or be uncovered in the future, there would be a risk of not simply disbarment but criminal prosecution. The leaker may expect that they will be lionized for this effort in the media, though that is more likely if it was a liberal rather than a conservative leaker. This could frustrate such plans. Frankly, I am surprised that such affidavits were not required in the first week.
Despite claims that the leaker is clearly coming from one side or the other, there are equally plausible theories for a leaker on the right or the left. What is clear is that this was a disgracefully unethical act that shattered the long traditions of the Court. The affidavits will make it more difficult for this individual to later try to capitalize on this wrongful act.