Leak probe exposes gray area
No law suggests any remedies following the release of high court draft on Roe v. Wade
There is a well-established but uneven pattern in U.S. law that applies to government secrets and the journalists who uncover them. The First Amendment generally protects the publication of a leak but not the leaker.
An authority no less than the Supreme Court has made it this way.
In 1971, as the justices prepared to rule that the government could not prevent The New York Times from publishing the Pentagon Papers — one of the biggest leak cases in history — the source of that leak, Daniel Ellsberg, was indicted by a federal grand jury for theft.
The court is now grappling with one of the most significant disclosures of a government secret since then: the release of a draft opinion that sets the framework for overturning Roe v. Wade.
Only this time the leak came from inside the building. And there is no law or written code of conduct that suggests how an investigation into such a breach should proceed or whether the journalists at Politico who brought the draft to light will be swept up in the kind of criminal investigation that top Republican lawmakers have demanded.
Unlike the Pentagon Papers, the government study of the country’s involvement in Vietnam, the draft opinion was not classified information. Leaking classified information is a crime. Instead, the recent leak broke the Supreme Court’s conventions for secrecy, an offense that has been punishable with almost certain career death but little else.
Given the magnitude of the leak and the aggressiveness with which federal prosecutors have pursued high-profile leakers and journalists in recent years, a criminal investigation is not unthinkable, legal experts said. And while no one is suggesting that Politico broke any laws in the course of publishing its article about the draft opinion, that does not mean the journalists involved would be spared from government pressure to reveal their sources if a grand jury was convened to consider charges against the leaker.
“I think it’s pretty clear there is at least enough for a grand jury to investigate,” said Eugene Volokh, a First Amendment expert at the UCLA law school. “The interesting question is to what extent there’s going to be a subpoena to a reporter.”
Often the government will decline to pursue journalists, Volokh added, noting how that could end up happening here. Attorney General Merrick Garland has issued a new policy that, with some exceptions, bars federal prosecutors from subpoenaing news media records or testimony. But as a legal matter, Volokh said, “I think subpoenaing the reporter would be constitutional.”
Media outlets and federal prosecutors have for decades been at loggerheads over whether journalists can be forced to reveal their sources in criminal leak investigations. In recent cases, the Justice Department has obtained phone records and emails from reporters in pursuit of leakers. Many of those cases involved the release of classified information.
The Supreme Court prides itself on a strict, lawyerly but nonbinding adherence to confidentiality. That has been enough to make the court the most impenetrable of the government’s three branches, its inner workings shrouded in secrecy and mostly absent from the bombshell tell-alls that are part and parcel of Washington journalism.
Chief Justice John Roberts has announced an internal inquiry.