It would be difficult to cite a higher American public interest than conducting a criminal investigation of the Supreme Court leak. The current security of the justices and the long-term viability of the court as an institution depend on it.

It was entirely appropriate for the court to confirm that Justice Samuel Alito’s draft opinion in the Mississippi abortion case, Dobbs v. Jackson Women’s Health, is not at this point an authoritative ruling of the court. There could understandably be public confusion on that point, so it was incumbent on the court to clarify.

But there are unwelcome consequences to even appropriate actions. The obvious one here is that with the court having assured everyone that there is a draft opinion but it is not yet a final ruling, radicals prone to intimidation tactics know that now is the time to act.

Moreover, they have targets. Besides Alito, four conservative justices have been reported as members of a majority that favors overruling Roe v. Wade and Planned Parenthood v. Casey — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

This is why the opinion must be formally issued forthwith. The viability of the court as a deliberative judicial institution is at stake. If the opinion or the vote tabulation were to change in any meaningful way, it would appear that the justices caved to intimidation tactics — which would simply breed more intimidation tactics. We’d have not the rule of law but the law of the jungle.

Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.
Supreme Court Justices Clarence Thomas (bottom, second from left), Neil Gorsuch (top, second from right), Brett Kavanaugh (top, left) and Amy Coney Barrett (top, left) could be targeted by abortion activists.
ERIN SCHAFF/POOL/AFP via Getty Images

Equally important, the security of the justices is at risk. Until the ruling is formally issued, the radical left — the people who destroy such norms as judicial confidentiality, the ones vowing to “burn it down” if they don’t get their way — will believe it can still change the outcome by intimidating one or more of these five justices.

That’s how serious this is and why the leak must be regarded as a criminal offense worthy of investigation, prosecution and imprisonment.

The leak is a corrupt act that was patently intended to influence the outcome of the Dobbs case. That makes it a criminal obstruction of that judicial proceeding. Obstruction is the charge that the Biden Justice Department has brought against some of the most serious Capitol riot defendants, whose corrupt acts were intended to influence and intimidate Congress into changing the outcome of the 2020 presidential election. It is even more clearly applicable to court cases — we don’t call it obstruction of justice for nothing.

 A mob of supporters of former U.S. President Donald Trump fight with members of law enforcement at a door they broke open as they storm the U.S. Capitol Building in Washington, U.S., January 6, 2021.
The Justice Department must prosecute the alleged leaker as much as the Capitol riot defendants.
REUTERS/Leah Millis/File

Note, in addition, that the justices, their clerks and administrative court personnel who support judicial operations are not private actors. They are government officials and employees. The records they generate, including draft opinions that are refined into eventual rulings, are not their private property. Those records belong to the United States.

Under federal law, it is a crime to embezzle government records or to convert them to one’s own use. The leaker, who took the draft opinion — the government’s property — and disseminated it outside the court’s established processes to someone not authorized to access it, has stolen a record and converted it to his or her own political purposes. That’s a crime.

Finally, federal law has long criminalized conspiracies to defraud the United States. As long interpreted by the Supreme Court, fraud in this context is not limited to schemes to swindle the government out of money or property. It includes deceptive acts that are intended to have, and can have, the effect of undermining government processes. Here, the leak was precisely intended to undermine the Supreme Court’s regular process for crafting, deliberating and issuing opinions that create binding United States law.

There are thus myriad, solid bases to investigate the leak as a federal crime. The Justice Department and the FBI must proceed with such an investigation. Even though it is welcome messaging that the court has consulted its marshal and asserted its determination to get to the bottom of this betrayal, the justices simply do not have the institutional wherewithal to conduct investigations. That’s not their job.

It is the job of the executive branch law-enforcement agencies. It is also the job of Congress to investigate corruption of the governmental processes, including judicial processes, for which the American people pay trillions of dollars annually. The political branches have subpoena power and other investigative authorities to gather evidence. They must use them.

Time’s a-wasting. It is not just that leaks get harder to investigate as days turn into weeks and the noise investigators must pierce through gets more intense. The integrity of the court’s processes, the court’s standing as a judicial institution and the security of the justices require a vigorous demonstration that leaks will not be tolerated. They’ll be prosecuted.

Andrew C. McCarthy is a former federal prosecutor.

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