'Chilling': Watchdogs fear FBI probe is cover for direct attack on 1st amendment

A coalition of 12 press freedom groups warned the FBI Wednesday that, contrary to claims by deputy director and former right-wing prosecutor Dan Bongino, a new probe into the leaked 2022 U.S. Supreme Court opinion in a landmark reproductive rights case appears aimed not at confronting "potential public corruption," but threatening constitutionally protected newsgathering activities.

Defending Rights and Dissent led a coalition including Fight for the Future and the Freedom of the Press Foundation in writing to FBI Director Kash Patel about Bongino's recent announcement that he is receiving weekly briefings on a probe into Politico's May 2, 2022 publication of the Supreme Court's draft opinion in the Dobbs v. Jackson Women's Health Organization nearly two months before the ruling was officially handed down and ended the constitutional right to abortion care.

Bongino said the FBI is spending more resources on investigations into possible public corruption including the Dobbs leak, the planting of pipe bombs near the headquarters of the Democratic and Republican national committees in January 2021, and a bag of cocaine that was found in the White House in 2023—but didn't specify how any of the cases address corruption specifically.

The groups asked Patel for "clarifying information" about the probe into the Dobbs draft decision leak.

Considering that FBI investigations are typically limited to violations of federal laws, national security threats, and foreign intelligence, the groups asked whether the probe is "predicated on a federal statute, and if so, what statute is it predicated on."

"Absent clarifying information, the Dobbs-related enquiry could give the appearance of an impermissible investigation into First Amendment-protected activities."

They also asked: "What is the impetus for the decision to give renewed focus into a three-year-old incident with no apparent criminal violation? Is there new evidence of violations of federal statutes?"

"While there are federal statutes governing national defense information, classified information, tax information, or certain government records whose release could cause unwarranted invasions of privacy, none of these statutes on their face criminalize sharing an unpublished court opinion with a journalist," said the groups.

Legal analysts said shortly after the draft opinion leak that—despite then-former President Donald Trump's demand for a "thorough criminal investigation" and his claim that journalists who published the opinion should be jailed until they released their sources—there was likely no crime committed in the leak.

"I am extremely skeptical of what basis or what authority the Justice Department would have to inquire into this matter," national security and whistleblower lawyer Bradley P. Moss told The Washington Post at the time. "It is certainly a fireable offense—without question—but there is no obvious criminal provision that would apply."

The Supreme Court and the Secret Service both conducted investigations that did not identify who was responsible for leaking the opinion to journalists.

The FBI's probe is reportedly "focused on finding the source who gave the unpublished opinion to Politico," wrote the groups. "As organizations that defend press freedom, free expression, and civil liberties, we are deeply concerned by the potentially chilling nature of this investigation on First Amendment-protected newsgathering."

"Absent clarifying information," they added, "the Dobbs-related enquiry could give the appearance of an impermissible investigation into First Amendment-protected activities."