Tuesday, May 03, 2022

Why The Leak Is Not The Issue: Another Object Lesson

"For years the radical left has attacked the institution of the Supreme Court," McConnell said. "Last night it appears their campaign hit a new low. Historically the justices, clerks and staff have prized and protected the court's confidentiality. The justices must be able to discuss and deliberate in an environment of total trust and privacy. Americans cannot receive a fair trial if politicians, pundit, bullies and mobs get a say in court. Judicial independence is vital, but the far left has spent years shamelessly attacking it."

Every word the man says is a lie, including "and" and "the."

"Somebody, likely somebody inside the court itself, leaked a confidential internal draft to the press," McConnell said. "Almost certainly in an effort to stir up an inappropriate pressure campaign to sway an outcome. The radical left immediately rallied around the toxic stunt. The cheerleaders for partisan court-packing applauded what they suggested was the work of, quote, a brave clerk making a last-ditch hail Mary attempt to cause a political firestorm and cause the court to reconsider. Liberals want to rip the blindfold of lady justice, they want to override impartiality with intimidation. They want to elevate mob rule over the rule of law."

He just invents things out of whole cloth, doesn't he? And actually, what he's decrying is what the opinion actually does.  It was funny earlier reading responses that said "Maybe Roberts will force the opinion to be more limited."  And then Roberts admitted this was a valid draft of the opinion.  Yeah, I don't think the CJ is the savior some pundits imagine him to be (why they imagine that is another question.  It's like those who kept waiting for Trump to "grow into" the Office of POTUS.  How'd that work out?)

"One of the court's most essential and sacred features was smashed just by the outrage industrial complex a few extra days to scream nonsense about what the court might rule," McConnell said. "This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible. I'm certain the chief justices will seek to -- chief justice will seek to get to the bottom of this. If a crime was committed, the Department of Justice must pursue it completely."

And of course:  "LOCK 'EM UP!"

Just so we're clear:  it is not a criminal act to release a draft of a Supreme Court opinion to the public.  It may be highly problematic and even a violation of legal ethics; but it's not a criminal matter.  

However, if you're talking about that, you aren't talking about the decision the Court is going to hand down, are you?  Come, let's talk about the leak some more. Odds of an investigation by the FBI? Zip and none. Once they start asking questions, where do the questions stop? The Supremes will not open their doors on this. Period. I do wonder what authority the "Supreme Court marshal"* has to bring obstruction of justice charges. Seems to me that would depend upon a possible violation of law, and I'm not sure there is one here.  Still, one wonders if Supreme Court clerks and staff have the good sense to follow Popehat's sage advice.  First rule of investigations:  investigators are not your friends.

Let's keep our attention on what matters:



*An update on the office of the Supreme Court Marshal:

In accordance with 28 U.S.C. § 672:

(a) The Supreme Court may appoint a marshal, who shall be subject to removal by the Court, and may fix his compensation.

(b) The marshal may, with the approval of the Chief Justice of the United States, appoint and fix the compensation of necessary assistants and other employees to attend the Court, and necessary custodial employees.

(c) The marshal shall:

(1) Attend the Court at its sessions;

(2) Serve and execute all process and orders issued by the Court or a member thereof;

(3) Take charge of all property of the United States used by the Court or its members;

(4) Disburse funds appropriated for work upon the Supreme Court building and grounds under the jurisdiction of the Architect of the Capitol upon certified vouchers submitted by the Architect;

(5) Disburse funds appropriated for the purchase of books, pamphlets, periodicals and other publications, and for their repair, binding, and rebinding, upon vouchers certified by the librarian of the Court;

(6) Pay the salaries of the Chief Justice, associate justices, and all officers and employees of the Court and disburse other funds appropriated for disbursement, under the direction of the Chief Justice;

(7) Pay the expenses of printing briefs and travel expenses of attorneys in behalf of persons whose motions to appear in forma pauperis in the Supreme Court have been approved and when counsel have been appointed by the Supreme Court, upon vouchers certified by the clerk of the Court;

(8) Oversee the Supreme Court Police.

To carry out these duties, 40 U.S.C. § 6121 authorizes the Marshal to police the Supreme Court building and protect the Justices, employees of the Court, and visitors to the Court. The Marshal also has authority to make arrests in carrying out these duties.

At the beginning of each session of the Court, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!" 

I cannot say that the statute which makes it a crime to lie to an FBI agent (or any federal investigator, presumably) applies to the Supreme Court Marshal, but it doesn't seem the Marshal has any particular law enforcement resposibilities, other than providing security to the Supreme Court.  They can make arrests in carrying out the duties of protecting people and buildings; but investigating leaks?  I think that's a matter of Supreme Court practice, not a matter of federal law.

I really don't think the Justices want an extensive investigation of the kind the FBI, or law enforcement in general, would engage in.  Which is why Roberts sent the matter to the Supreme Court Marshal.  He's one of them (he's an at-will employee they can fire for any reason they like).

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1 comment:

  1. The Thought Criminal1:10 PM

    Isn't investigation and indictment a prerogative of the executive and legislature? Where in the Constitution does it give the Supreme Court the power to investigate and indict?

    ReplyDelete

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