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Bill Barr Says SCOTUS May Need Special Counsel To Out Leaker, Floats Criminal Charges

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WASHINGTON, DC - DECEMBER 21: US Attorney General Bill Barr holds a news conference to provide an update on the investigation of the terrorist bombing of Pan Am flight 103 on the 32nd anniversary of the attack, at the Department of Justice December 21, 2020 in Washington, DC. Barr announced criminal charges against one of the alleged Libyan bombmakers. The bombing occurred on December 21, 1988, killing all 259 people on board and eleven on the ground in Lockerbie, Scotland. (Photo by Michael Reynolds-Pool/Getty Images)
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Former Attorney General Bill Barr said that Chief Justice John Roberts may have to arrange for a special counsel to investigate and identify who leaked a Supreme Court draft decision this week.

Barr appeared on SiriusXM host Megyn Kelly’s show on Tuesday to discuss the Monday leak of a Supreme Court draft potentially overturning Roe v. Wade, a controversial 1973 decision that created federal protections for abortion procedures.

“I was flabbergasted,” Barr said, reacting to the leak. “It really is unprecedented. Our institutions have become increasingly politicized, but I never imagined this could happen to the Supreme Court, which has always protected its confidentiality. And for someone to let this out in order to influence the final decision is really beyond the pale.”

Barr said that Roberts, who confirmed the authenticity of the draft document on Tuesday, may need to appoint a special counsel to identify the leaker. The former attorney general said he believes that criminal charges are likely necessary in order “to compel the truth.”

Barr said that the leaker could potentially be prosecuted for obstruction of justice. “Obstruction means you’re attempting to influence, you know, through some kind of wrongdoing. I don’t think it’s a stretch” to prosecute the leaker under that charge, he said.

“I think the chief would have had the option, and perhaps he still will, to appoint a special counsel. Not in the classical criminal sense, but the court can appoint a counsel and he could bring in a former U.S. attorney or someone with a criminal law background. And I’m sure he would get the support he needed from the FBI or any other law enforcement agency,” he said.

He also guessed that the leaker is most likely the clerk of a liberal court justice.

“I suspect it was a law clerk,” he said, before explaining why a conservative justice’s clerk is unlikely to be the leaker. “I don’t think a conservative clerk would have put this out with the idea that this would somehow shore up a wobbly judge. This is gonna be a controversial decision if it came out.”

The leaked draft, a decision in the case of Dobbs v. Jackson’s Women’s Health, if made final, would overturn the decision in Roe and send greater authority over abortion laws to state legislatures and Congress. Barr said that many have misunderstood the impact of such a decision to mean that abortion would be banned nationwide.

“That opinion, if it were to be the final opinion, isn’t saying you have to prohibit abortion, it’s saying this is a matter for the states to decide, and a very high proportion of our states are going to permit abortions. There may be reasonable regulation and time periods, but it’s not going to prohibit it nationwide,” he said.

“And what we hear is, well, somebody in Idaho is going to have to go to California to get an abortion. Well, that’s what we get living in a federal republic where states are sovereign and can set the rules for the people of their state,” he continued. “And if people don’t like the rules in Idaho, they don’t necessarily have to move, but they might have to go to California to get an abortion.”

“That’s the price we pay for federalism and it’s well worth the price. The alternative, which is to say the law has to be exactly the same throughout the country, as I say, that creates a pressure cooker and that’s one of the problems we have today,” he said.

 

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