Make those Politico Reports confess or have them walk the plank.
I'd scare the crap out of them and then, into the drink, they go! Heck, this feels like a great pirate movie!
The House Can Help Find the Supreme Court Leaker
The marshal doesn’t have subpoena power, but the Judiciary Committee does.
By Alan M. Dershowitz
Feb. 1, 2023 2:27 pm ET
The marshal of the Supreme Court seems to have come up empty in her investigation of who leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization. But there may yet be a way of finding out who did it—if the House Judiciary Committee is willing to play hardball with the press.
After the marshal’s report came out, Donald Trump offered the following advice on his social-media site: “Go to the reporter and ask who he/she is. If no answer is given, throw anyone in jail until an answer is given. . . . It won’t be long before the name of this slime will be revealed!”
The marshal’s office has no such authority, and there’s unlikely to be a criminal investigation in connection with the leak. But the Judiciary Committee could subpoena the Politico reporters who broke the story.
They would surely refuse to reveal the source, and the committee would have to petition a court to compel the disclosure. Under federal law, journalists don’t have an absolute privilege to keep their sources secret, as Judith Miller can attest. As a New York Times reporter, Ms. Miller spent 85 days in jail in 2005 for refusing to divulge a source in a leak investigation involving the identity of a former covert Central Intelligence Agency officer. Other journalists have been compelled to reveal their sources when courts decided the governmental interest in disclosure outweighed the journalistic interest in protection.
What are the countervailing interests in this potential case? In general, the public has a great interest in sources revealing, and the media publishing, secrets about official misconduct or questionable actions that the government seeks to suppress. The Pentagon Papers and some of what was published by WikiLeaks may fit into this category. (I provided legal counsel to Alaska Sen. Mike Gravel and WikiLeaks founder Julian Assange in those cases.)
But what legitimate objective was served by the disclosure of a draft Supreme Court opinion weeks before it was issued? I can think of several illegitimate goals, from improperly influencing justices to inflaming public opinion. After the leak but before Dobbs was decided, a man was arrested near Justice Brett Kavanaugh’s house and charged with attempted murder. He has pleaded not guilty.
Even if no legitimate purpose was served by this particular leak, some would argue that compelling journalists to reveal their sources might discourage other sources from disclosing important information about government misconduct.
Another argument is that compulsion would be futile, since all decent journalists would go to jail rather than give up a source. Maybe. But some reporters have complied with court orders. Ms. Miller was eventually persuaded to testify by her source, I. Lewis Libby.
In any event, either of these arguments would amount to an absolute privilege that would deny the courts the power to compel reporters to reveal their sources.
A fair weighing by a court would conclude that this is a close case. Since Congress has never enacted a shield law, neither side has a presumption in its favor. But the argument for compelled disclosure is strong because the source didn’t seek to expose any wrongdoing by the government, only the usual workings of the Supreme Court and a decision that would have become public within weeks. A court could conclude that the public’s right to know who the leaker was outweighs its interest in learning the outcome of a court ruling in advance.
Mr. Dershowitz is a professor emeritus at Harvard Law School and author of “The Price of Principle: Why Integrity Is Worth the Consequences.”