Thursday, January 19, 2023

Shut Up, Old Man

There was no crime, so no basis for an arrest. And five different media sources originally reported on the draft opinion. How many people do you arrest at each outlet? Maybe you get to use “enhanced interrogation”?  And sure enough, it gets worse:
When is an investigation really not an investigation? When you're told what you can and can't do," he said, implying that the probe was a joke. "You can't do what you need to do or talk to the people you need to talk to solve the investigation and whether it's conducted by professional investigators. Let's level set here. There have been some things said that I think we need to clarify. No. One, the U.S. Marshal Service did not conduct this investigation. This investigation was conducted by someone called the Marshal of the Supreme Court. I'm sure she's a wonderful person, but she has no law enforcement training or experience. She's in charge of securing the building called the Supreme Court building and the justices. that's what she does. That's who they gave this to in this most egregious breach of security in the history of the Supreme Court."
He's not wrong about how the "investigation” was conducted. But ramping the leak up to “the most egregious breach of security in the history of the Supreme Court”? Tell me, what was the runner up?
While they may have talked to 200 people, they didn't talk to X clerks, they didn't talk to the very universe of people who may have done the leaking and left the court to go onto some great legal job," he said. "They didn't talk to those people. They didn't call the FBI because you know what would happen, a real case would have happened. They would have actually had the criminal process. Someone stole government property. Someone mishandled government records, potentially a crime. They could have had subpoenas of former clerks and former employees, they would have had that leverage over them. They could have subpoenaed phone carriers and internet providers and they could have seen who was talking to whom and when at the media platform that obtained this information. All that could have been done."

Again:  what criminal process?  Cite me the statute that makes draft court opinions a national security matter, or classified material at all. "Someone stole government property"?  Tell me, exactly how does that work?  What are the elements of the crime, and what is the mens rea? And, because the courts would ask, what do you mean by "stole", aside from "turned it over to various news media sources for publication." Because that doesn't constitute "theft of government property."

"Someone mishandled government records, potentially a crime," is as absurd as saying the FBI should be serving search warrants on Biden's Delaware home and having his Corvette deconstructed piece by piece, just to be sure.  "Mishandling government records" isn't even the crime Trump is facing for MAL.

And "they" didn't do anything.  John Roberts did this.  He didn't call in the FBI because it wasn't a federal crime, and because he didn't want investigators interrogating the 9 justices about what they knew.  Mostly for the very reason the leak happened in the first place; FBI agents arranging interviews would be the spark that lights the kindling that is the bonfire of the vanities the Court is trying to explode into, anyway.  The "sensitive government matters" here was not a document which was published a few weeks later, almost verbatim to the copy that was leaked.  The "sensitive government matters" was the relationship between the 9 justices of the Supreme Court.  And those relationships are governed only by the rules of the Court; just like the relationships between the 435 House members and the 100 Senators.  Each institituion has its own rules, and neither of the other two can weigh in on the rules that govern the third.

Let me be crystal clear:  I think Dahlia Lithwick is right.

"I think that the decision was taken to do this is in-house using the Marshal Service, but probably other choices could have been made, to have a different, perhaps more thorough investigation. But I think the takeaway is exactly what you just heard, that for a leak that was characterized by most of the justices as the single most shocking, egregious violation of norms like trust. It's still being credited for destroying collegiality amongst the justices."

"This was a nuclear bomb that went off into court. And now the answer seems to be, 'so sad, too bad, I'm good,'" she observed. "It's pretty amazing in light of how absolutely consequential this has been, not just for the justices amongst themselves, but for the sort of integrity and reputational interests of the court."

But, as the Devil's Advocate, I have to ask:  if this was a "nuclear bomb that went off into court," is a deep and penetrating investigation that fingers the leaker (more likely than not a sitting Justice) the clean-up operation after that explosion?  Or is it just a retaliatory strike that poisons the ground for the half-life of plutonium?  Because it won't trigger an impeachment hearing in the House (not these days), and it won't lead the Senate to remove a sitting Justice (which, like removal of a POTUS, is something the Senate has never done).  So let's just make matters worse for the Court than they already are?

I guess that would serve "transparency," huh?

Honestly, the stupid, it burns.

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