.BarbMcQuade shares a word (or two) of advice for the woman tasked with finding the Supreme Court leaker.
” when the justices take the bench for oral argument. The marshal oversees the Supreme Court police, which has powers of arrest and is responsible for security of the court and its personnel. It is an important job, but one that rarely involves proactive investigations like this one.took over as marshal of the Supreme Court less than a year ago. She is a former Army colonel, and a graduate of West Point and the University of Illinois Law School.
Barr argued that a criminal investigation would focus not on the nature of the document, but on the motive of the leaker. His theory is that the leaker was attempting to intimidate or interfere with the court’s operations, in violation ofPerhaps. And even if that theory did not ultimately pan out, it is a sufficient basis to open a criminal investigation, which simply requires a factual basis to believe that a crime may have been committed.A larger issue would be separation of powers concerns.
DOJ lawyers would also want to question justices, law clerks and other court staff under penalty of perjury. Agents would want to inspect the residence of any employee who has been working from home during the Covid pandemic. That kind of scrutiny by a separate branch of government is likely an intolerable intrusion into the close-knit, secretive operations of the court, which at any time has in its files memos and draft opinions about pending cases involving the Justice Department as a party.
Even more concerning would be what would happen if a criminal suspect were identified in a DOJ investigation. What if the suspect were a justice? Would they be referred to Congress for impeachment? Or would they be charged with a crime? If they were convicted at trial and appealed, would the Supreme Court ultimately hear the appeal? Would the defendant justice be required to recuse themselves?
One advantage DOJ would have over the marshal to investigate the leak is subpoena power, as Barr noted. DOJ could use a grand jury subpoena to compel court employees to testify under penalty of perjury or contempt. But would DOJ really subpoena a Supreme Court justice? And if the justices refused to comply, would they go to court to contest the subpoenas? Again, who would hear the ultimate appeal?
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