Former Attorney General William Barr said the leaker who gave the media a copy of the high court’s draft opinion gutting the landmark Roe v. Wade decision could have committed obstruction of justice.
Mr. Barr told SiriusXM’s “The Megyn Kelly Show” on Tuesday that he was “flabbergasted” by the leak and that Chief Justice John G. Roberts Jr. could appoint a counsel and utilize the FBI to get to the bottom of who released the court’s documents.
“It could be obstructing the administration of justice, the due process of justice,” he said. “Obstruction means you’re attempting to influence, you know, through some type of wrongdoing. And I don’t think it’s a stretch.”
Other legal experts have said it’s unlikely criminal charges would be brought, but the individual could lose his or her legal career as a result of the breach.
Steven Aftergood, who studies government secrecy policy at the Federation of American Scientists, said Supreme Court draft opinions are not protected as classified government information like defense secrets. Therefore, it is unlikely that the individual who leaked the draft opinion would face criminal charges.
“Almost all prosecutions in previous ’leak’ cases involved unauthorized disclosures of classified information in violation of the Espionage Act statutes. That is obviously not the case here,” he told The Washington Times.
Mr. Aftergood said it is too soon to know whether a crime may have been committed by disclosing the document. If one of the justices released the opinion to the press, it would violate Supreme Court protocol but would not run afoul of any criminal statute, he said. However, if another person — like a clerk to one of the justices — gained access to the draft and released it without authorization, that could be considered a theft of government property.
It’s unclear at this stage if the Justice Department would investigate, though some House Republicans have called for a probe by Attorney General Merrick Garland.
“Whoever is responsible for this breach must have known that the draft opinion would foment discord and upheaval, potentially pressuring Justices to reconsider their votes through threats or intimidation. Whatever the reason, this leak undermines the institution of the Court; it also serves to potentially intimidate and manipulate its members, threatening the integrity of one of the three branches of the U.S. government,” GOP lawmakers on the Committee on Oversight and Reform wrote in a letter to Mr. Garland on Tuesday.
A spokesperson for the high court did not respond to a request for comment.
Court watchers were aghast Monday night when news broke that a draft opinion indicates the high court would overrule the 1973 Roe decision, which gave women a national right to an abortion until fetal viability.
It is the first time a full draft opinion has been leaked in the Supreme Court’s 233-year history, according to former law clerks.
In the 98-page draft opinion obtained by Poltiico, Justice Samuel A. Alito Jr. said abortion should return to the state legislatures.
“The Constitution makes no reference to abortion,” he wrote. “Roe was egregiously wrong from the start.”
“It’s time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” reads the opinion, dated from February.
An official ruling in the case is expected by the end of June.
The court is weighing a Mississippi ban on abortion at 15 weeks in the case of Dobbs v. Jackson Women’s Health Organization.
Mississippi officials argue that Roe should be overturned because it’s outdated. The state contends the viability standard set out in Roe is unclear, and Mississippi has an interest in banning abortions after 15 weeks to protect women’s health and that of unborn children.
The legal battle was brought by Jackson Women’s Health Organization, the state’s only abortion clinic, and a doctor who provides abortions. According to court papers, the clinic provides abortions up to 16 weeks of gestation.
They challenged the state’s Gestational Age Act, enacted in 2018. The law bans abortions after 15 weeks unless there is a medical emergency or severe abnormality within the fetus.
The abortion providers told the court in their filing that the state’s interest in the woman’s health and children doesn’t begin until viability, occurs “months” after the 15-week marker set in the law.
Correction: The first name of Attorney General Merrick Garland was misspelled in a previous version of this story.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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