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The court let the leaker walk


The leaker got away.

But If Supreme Judicial Court Chief Justice John Roberts really wanted to find out who leaked the draft abortion ruling that roiled the nation, he should have asked the reporters who broke the story.

They would be Politico’s Josh Gerstein and Alexander Ward who got the leak from an anonymous court source and ran with the explosive story May 2.

Not that they would have revealed their source, but it would have made for an interesting development.

Gerstein and Ward are the reporters who got hold of the leaked draft court opinion, written by conservative Justice Samuel Alioto, that overturned Roe v. Wade, allowing states to make their own abortion laws.

The draft opinion was later confirmed by the court on a five-to-three ruling with Justice Roberts writing a concurring opinion but not casting a vote.

Justice Roberts at the time called the leak an extraordinary breach of the court’s time-honored secret deliberations and launched an investigation to find the leaker.

The leak led to massive pro-choice protests and demonstrations outside the homes of  conservative, pro-life Justices Alioto, Neil Gorsuch, Amy Coney Barrett and Clarence Thomas. Justice Brett Kavanaugh became a target for assassination.

The report of the investigation, led by the court’s marshal, Gail A. Curley, was released last week.  The report said that investigators had collected all court-issued laptops and cellphones from people who had access to Alioto’s draft opinion.

It also conduced 126 formal interviews of 97 employees — under the penalty of perjury — all of whom denied being the source of the leak.

It was suspected at the time that the leak may have come from one of the three dissenting justice — Elena Kagan, Sonia Sotomayor or Stephen Breyer, since retired, all Democrats, or from one of their clerks.

Each justice has four law clerks working for them. But It is highly doubtful that a law clerk would be the leaker, unless instructed  to do so by a justice.

Unlike the justices, who spend a lifetime in Washington and interact with reporters, the clerks serve only one-year appointments. While they are super-star graduates of mostly Ivy League law schools they are not around long enough to find the subway, let alone befriend reporters.

And the penalty would be disbarment and possibly prison.

Most likely, the leak came from one of the three dissenting Democrat justices with the aim of alerting the Democrat progressive base to what – if not stopped — was coming.

The investigation into the leaker was not designed to find out who the leaker was, but to protect the justices and the institution. While the judges may have been questioned, none of them were questioned under oath.

It’s like the classic movie Casablanca where Rick Blaine (Humphrey Bogart) shoots Nazi Major Heinrich Strasser (Conrad Veidt), at the airport as Rick’s s co-conspirator Police Captain Lous Renault (Claude Rains) looks on. Renault then orders his arriving subordinates to “round up all the usual suspects.” He and Rick then walk away arm and arm.

Curley is Captain Renault. She rounded up all the suspects, except for the judge who walked away.

So, the only people who know who could have identified the leaker were the two reporters, Gerstein and Ward.

They are not, of course, Bob Woodward and Carl Bernstein, who with the book and movie “All the President’s Men” have lived off  “deep throat,” their once-anonymous leaker, and Watergate for 50 years.

Still, the two Politico reporters might have missed a golden opportunity for fame and fortune, like W & B.

After being subpoenaed by Curley, all Gerstein and Ward had to do was refuse to reveal their  own “deep throat.”  They would be heroes like W & B. Then, after being held in contempt of court, and spending a couple of weeks in jail, they could have come up with their own book and screenplay revealing all. It would be called “The Leaking Judge.”

And we would be talking about who would play them in the movie.

Instead, the leaker walked.

Peter Lucas is a veteran Massachusetts political reporter and columnist.




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