The unprecedented leak Monday night over a draft Supreme Court opinion seemingly signaling the end of Roe v. Wade immediately prompted calls for a criminal investigation into the matter.

Senate Minority Leader Mitch McConnell (R-KY) was among the top conservative lawmakers pushing for an investigation by the Justice Department on Tuesday, saying: "This lawless action should be investigated and punished as fully as possible."

While Chief Justice John Roberts has ordered an investigation by the Marshal of the Court, legal experts are skeptical of any criminal wrongdoing surrounding the leak.

One of the major stopgaps that could prevent a criminal referral to the DOJ is that Supreme Court opinion is not classified, a facet that usually serves as the root of leak investigations, according to Omar Ochoa, an attorney based in Edinburg, Texas.


"There are certain agencies where disclosure of confidential information is actually a crime, like national security information, but I'm not aware of anything like that in the Supreme Court in terms of disclosing confidential information," Ochoa told the Washington Examiner.

Although the identity of the leaker has not yet been revealed, some legal experts have speculated that the culprit is a law clerk or someone who works within the Supreme Court.

Other legal watchers, however, have raised caution about immediately jumping to conclusions.

"I don't know that we should necessarily assume that it was an inside job, so to speak, a clerk or a justice. Certainly, there's hackers out there who perhaps have an incentive or a motive to do something like this ... It's all speculative at this point," Jared Carter, a professor at Vermont Law School, told the Washington Examiner on Tuesday.

Regardless of the leak's origin, Ochoa said it "does not appear to be criminal," noting there are scenarios where a leak investigation could become more serious "if somebody were to use information from the Supreme Court on a corporate matter" or for some sort of financial gain similar to ignoring insider trading laws.

If any consequences come from the leak investigation, the outcome is more likely to result in firing or disbarment if the leak stemmed from a clerk within the high court.

"If it's somebody, you know, internal to the court, if it's one of the law clerks, for example. I mean, they are all lawyers ... I think losing their employment would probably be the most straightforward outcome of the investigation if they were found out, but I think there's also some potential for losing their license" to practice law, Ochoa said.

Any amount of confidential disclosure by a member of any state bar would likely raise alarm bells among anyone licensed to practice law, Ochoa pointed out. "Doing things against your clients, best interests, you know, committing an affront on the integrity of the court system. I mean, these are all things that could lead to disbarment," Ochoa said.

Prominent legal experts such as George Washington University law professor Jonathan Turley and Bradley Moss, a national security and whistleblower lawyer, largely agree that the incident is not criminal in nature.

“Could they theoretically get away with that as sufficient predicate? I guess, in theory, they could,” Moss told the Washington Post. “It’s just a serious stretch.”

Other conservative figures including Fox News host Laura Ingraham have gone as far as to call for an FBI investigation. The former president's son, Donald Trump Jr., echoed similar calls, saying the release of "privileged documents" requires a "thorough criminal investigation."


The outlet Politico was the first to report the leaked documents Monday night and included a digital copy on its website, citing it as a draft opinion from a "person familiar with the court's proceedings" without identifying the source.

The Washington Examiner contacted the Supreme Court Public Information Office for more information related to the investigation.