An investigation is underway into how the draft opinion on abortion rights was leaked.
Chief Justice John Roberts called the leak egregious. He wrote in a statement that the document was authentic, but “does not represent a decision by the Court or the final position of any member on the issues in this caes.”
He directed the Martial of the Court to launch an investigation into the source.
Team 10 turned to legal experts to ask what this investigation could look like.
“The first thing is to find out who was there who had access to the documents,” said criminal and civil attorney Brian Watkins. He said it is a process that may be easier said than done.
“It was given to a member of the press. Press, of course…has the right not to divulge its sources, so they can subpoena the individual who did the story ahe doesn't have to really speak as to where he obtained,” Watkins said.
Legal experts agree that termination is likely for the person who leaked it and civil action could be possible.
Despite calls by top Republicans like Senator Mitch McConnell for criminal action, Watkins said it depends on how the draft opinion was obtained. “If someone broke into someone's office, saw that on a desk and took it or made photocopies of it without their permission, there could be criminal charges pending,” he said. “The question is how did that person have access to it and what was their authorization to do what they did with it?”
As far as what evidence may be obtained, electronic discovery is a possibility in figuring out who leaked the opinion. “Emails, text messages, anything that's transmitted electronically is generally something that we can discover, absent significant lengths of someone to cover that up,” said Maggie Schroedter, President of the Lawyers Club of San Diego.
Watkins said there are no whistleblower protections for the leaker because the Supreme Court opinion, “whether you agree with it or disagree with it, is not a crime.”