Following the Supreme Court's released findings of the investigation into who leaked the draft decision overruling Roe v. Wade, the matter seems to be closed. There has been no public disclosure of any further efforts to identify the malefactor.
This is an unsatisfactory resolution to one of the most serious breaches of confidentiality in American history.
Let us not underestimate the seriousness of this leak. It apparently encouraged a potential assassin to try to murder Justice Brett Kavanaugh in an effort to change the outcome of the case. It could easily have succeeded in doing so.
The failure to discover the leaker will encourage others to engage in actions which they believe are well-intentioned civil disobedience even if it does not involve the disclosure of governmental wrongdoing. The mystery of who leaked this draft decision must be solved.
The investigation done by the Supreme Court was destined to fail. It was put in the hands of the Court's Marshal, whose job it is to protect the Justices and to assure order in the Supreme Court building. The office of the Marshal is not equipped to conduct difficult investigations.
The matter should have been turned over to the FBI or a special counsel appointed by the Justice Department, as was done with the unauthorized possession of classified material by President Joe Biden and former President Donald Trump.
Let us be clear about one thing: the improper disclosure of the Supreme Court draft opinion in this case was at least as serious a breach as the Biden or Trump violations. Neither Biden nor Trump disclosed any classified material or actually endangered the security of the United States. They were dangerous because of the potential improper disclosure, whereas the Supreme Court leak involved an actual disclosure that impacted the High Court in numerous negative ways.
Trump criticized the Supreme Court investigation: he argued that the reporter who published the draft opinion should have been subpoenaed and threatened with imprisonment if he or she did not disclose the source. The reporter would undoubtedly claim that such compulsion would violate the journalist-source privilege that exists in many jurisdictions. It is not an absolute privilege, as evidenced by the fact that journalists, most famously Judith Miller of The New York Times, actually spent time in prison for refusing to comply with judicial orders to disclose her source. Subpoenaing a journalist and threatening her with imprisonment should be an absolute last resort.
Would it be justified in this case? Perhaps. The likelihood is that, like Miller, the journalist who received and published the draft opinion would refuse to disclose its source, although no one ever knows what impact the threat of imprisonment would have on a given journalist.
The journalist was not at fault for publishing the draft opinion. It was highly newsworthy, and like the Pentagon Papers and other confidential materials that have been published, the journalist receiving them has an obligation of disclosure to the public.
The same cannot be said about the Supreme Court employee who violated the commitment to confidentiality by improperly disclosing a document that was supposed to be kept secret until the decision was rendered by the Justices. If the source or sources are finally identified, they will probably defend their actions on the basis of a higher good. But noble ends to not justify improper or unethical means, especially if the disclosure might well have threatened innocent lives.
So do not allow the investigation to end with the report of failure. Thus far the entire matter has been relegated to the judicial branch, because that is the one most directly affected. All Americans are the victims of this breach, and both the executive and legislative branches have default roles to play if the Supreme Court cannot do the job properly.
Despite the fact that disclosure in and of itself may not be a crime, it may involve criminal conduct either before, during or after the disclosure itself. If the leaker lied to a law enforcement person -- including the Supreme Court Marshal -- that might be a crime. The FBI certainly has jurisdiction to investigate whether a crime has been committed.
Congress, too, may have an appropriate role in assuring that this breach does not recur. The report issued by the investigators faulted the security at the High Court. That problem will not be easy to solve: law clerks work on drafts and often take them home. The investigation also disclosed that several law clerks told their wives or partners about the decision.
When I was a law clerk in the Supreme Court 60 years ago, each Justice had only two law clerks and there were far fewer personnel in the institution. The first two months, the doors of the Supreme Court were open to anyone. A visitor could simply knock at the Justices' door and ask for an appointment. Then in the third month, President John F. Kennedy was assassinated. After the assassination, nearly everything changed. Security was enhanced, barriers were erected and access to the Justices was severely limited. Nothing, however, was done to protect the secrecy of draft opinions and it seems that little or nothing has been done since.
It will not be cost-free to impose restrictions on law clerks' access to draft opinions and their handling of them. Even so, this cost, provoked by the current breach, may be worth incurring in order to protect future disclosures.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Price of Principle: Why Integrity Is Worth The Consequences. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.
