FIRST IN DAILY SIGNAL: Utah Republican Sen. Mike Lee believes it is still “very possible” to uncover the identity of the leaker who exposed a draft of the Supreme Court’s Dobbs v. Jackson Women’s Health Organization abortion opinion overturning Roe v. Wade—a leak that prompted illegal protesting and threats to the safety of the justices.
“We do need to find who the leaker is,” Lee said in a Thursday phone interview with The Daily Signal. “Had an adequately thorough investigation been performed at the outset, a year ago, we would have gotten to the bottom of this very quickly.
“I still think they could get to the bottom of this.”
In January, the Supreme Court announced it was unable to determine the identity of the leaker or leakers. Investigators did determine that 82 employees had access to electronic or hard copies of the draft.
Lee suggests that the Supreme Court marshal reopen the investigation and enlist the help of the U.S. Marshals Service, which could be deputized to conduct an investigation.
“They need to thoroughly interview, and follow up on interviews, with each and every law clerk who served there as well as other court personnel sufficiently close to the process to have unfettered access to the opinions,” he said.
That leak presented significant safety risks to the Supreme Court justices, Lee emphasized. Shortly after the leak, the radical pro-abortion group Ruth Sent Us posted the justices’ addresses online and began urging protesters to protest at the homes of the “six extremist justices, three in Virginia and three in Maryland.” They were joined by activists with Our Rights DC, ShutDownDC, Rise Up 4 Abortion Rights, and other leftist groups.
This protesting has frequently occurred in spite of 18 U.S. Code 1507, which forbids picketing or parading “in or near a building or residence occupied or used by such judge, juror, witness, or court officer” with the intent of intimidating or influencing that person.
On June 8, 2022, authorities arrested 26-year-old Nicholas John Roske near Justice Brett Kavanaugh’s home in the middle of the night. Roske had traveled from California to Maryland armed with weapons and burglary tools to try to kill the justice and stop Roe from being overturned, according to a Department of Justice affidavit.
Kavanaugh wasn’t Roske’s only target: “I could get at least one, which would change the votes for decades to come, and I am shooting for 3,” the attempted assassin told his friend of his plot, adding, “All of the major decisions for the past 10 years have been along party lines, so if there are more liberal than conservative judges, they will have the power.”
Lee warned that if investigators do not get to the bottom of the leak, things will get worse.
“This sort of thing will continue if there’s no consequence to it,” the senator said.
Asked if the Dobbs leaker shares culpability, Lee said he believes the leaker shares “some culpability for threats” to the justices’ safety.
“That’s what prompted the initial round of protests—the leak itself,” he explained. “And the whole idea was, if we can get people angry enough, then people will show up at the homes of the justices. We want them to be afraid. And perhaps somebody will kill them. Perhaps someone will either kill one of the justices signing on to it [the Dobbs decision], which would change the composition of the majority and perhaps mean that the case could be decided differently, or alternatively, it might scare the justices who were part of the Dobbs majority to a degree sufficient to convince them to go in a different direction.”
“That’s just lawlessness,” he said. “That’s pure evil. You’re using threats of physical violence in order to change the way these jurists interpret the law and discharge their duties.”
Earlier this week, Lee joined fellow Republican Sens. Katie Britt of Alabama, Tom Cotton of Arkansas, and Ted Cruz of Texas in sending a letter to Attorney General Merrick Garland. That letter revealed that the senators have obtained “post orders” dated May 19, 2022, claiming that U.S. marshals were “not in a position to enforce” federal and state law.
The U.S. Marshals Service should not engage protesters “unless they attempt to enter private property,” the post orders said, according to the senators. This matches what members of the Marshals Service told The Daily Signal on the ground at Chief Justice John Roberts’ home in January.
The Marshals Service is part the DOJ, operating under the direction of the attorney general.
Post orders on June 4, which came four days before authorities arrested Roske for attempting to assassinate Kavanaugh, reportedly warned the marshals that they “should not engage in protest-related enforcement actions beyond that which are strictly and immediately necessary and tailored to ensure the physical safety of the Justices and their families.”
Like similar materials that Britt revealed in March, the post orders also allegedly ordered Marshals Service personnel that “[a]ny contemplated USMS enforcement action should be coordinated in advance” with the appropriate U.S. attorney’s office.
As the senators pointed out, Garland has since admitted that it is a federal crime to protest outside a judge’s or justice’s home with the intent of influencing that judge or justice, but he has not enforced that law, though both Virginia Gov. Glenn Youngkin and former Maryland Gov. Larry Hogan requested that he do so. Garland also claimed in March that the U.S. marshals “on scene” make the decision “whether to make an arrest.”
“In light of all the clear evidence that DOJ actively sought to dissuade USMS personnel from enforcing Section 1507,” the senators wrote, “the Deputy Attorney General’s April 19th testimony before the Senate Judiciary Committee, the March 29th statement made by USMS Director Davis, and your continued failure to amend your March 1st testimony before the Senate Judiciary Committee all raise a number of troubling questions regarding DOJ’s dishonesty and impropriety with respect to its handling of this matter.”
Lee “can’t fathom” a legitimate reason why the DOJ would dissuade the marshals from enforcing the law, particularly knowing the “very real threat and risk to” the justices’ safety.
Roske was likely able to get as close as he did to the Kavanaugh family home because authorities were so used to allowing protesters to meander about the justices’ residential neighborhoods, the senator suggested. If Roske’s sister hadn’t convinced him to surrender to police, he may well have succeeded.
“That’s how people slip through,” Lee noted. “Remember, these groups are advertising. They are sending out notices as to where the justices live, and so that invites a lot of people there, and then once they’re there, it makes it harder to protect the home. So, this really does present a significant threat.”
If the tables were turned, and pro-life protesters had descended upon a liberal justice’s home to protest, Lee doubts that the DOJ and Marshals Service would have handled the matter in this way.
“I think we can reasonably extrapolate [this] from how vigilant the Department of Justice is in prosecuting cases under the FACE Act, where abortion clinic entrances are at issue, and the relative frequency with which they bring those cases [against pro-lifers] as compared to cases involving places of worship or pregnancy centers,” he added, pointing to the discrepancy in the DOJ’s prosecution of pro-lifers compared to its handling of over 100 leftist attacks on pro-life pregnancy centers and churches.
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