Could Supreme Court Leaker Be Criminally Prosecuted? Maybe

COMMENTARY Courts

Could Supreme Court Leaker Be Criminally Prosecuted? Maybe

May 4, 2022 7 min read

Commentary By

Zack Smith @tzsmith

Legal Fellow and Manager, Meese Center for Legal Studies

John Malcolm @malcolm_john

Vice President, Institute for Constitutional Government

Pro-life and pro-choice activists gather in front of the U.S. Supreme Court Building on May 03, 2022 in Washington, D.C. Win McNamee / Getty Images

Key Takeaways

While leaks in the court’s history have been rare, there is some precedent for prosecuting a justice’s law clerk who leaked information to the press.

It’s definitely a sin and an unpardonable one. But is it a federal crime? Maybe.

Even if criminal liability does not attach to the person or entity responsible for leaking the draft opinion, professional consequences are sure to follow.

Politico published a bombshell story late on May 2 that five Supreme Court justices had voted to overturn Roe v. Wade. Shockingly, the story even contained a link to an authenticated full draft opinion written by Justice Samuel Alito, which he apparently circulated to the other justices almost three months ago.

This isn’t a final opinion and the votes can still change. Why else leak it, though, except as a last-ditch effort to bully at least one of the justices into changing his or her vote or to influence the political process in some way?

While leaks from the Supreme Court have happened in the past, they have historically been few and far between, and never this egregious. And it’s hard to remember any other time where someone leaked a complete draft opinion.

While leaks in the court’s history have been rare, there is some precedent for prosecuting a justice’s law clerk who leaked information to the press—though the Department of Justice ultimately dismissed the case.

In 1919, Ashton Embry, Justice Joseph McKenna’s law clerk, resigned to become a full-time baker. It was an odd career change, but one that made more sense when just “a few months after this resignation, the Department of Justice indicted him for sharing the court’s decisions with Wall Street traders before the decisions were officially released.”

Still, with “no explicit prohibition on insider trading [at the time], the DOJ charged Embry with conspiring ‘to deprive the United States of its lawful right and duty of promulgating information in the way and at the time required by law and at departmental regulation.’” His case never went to trial, and the DOJ dismissed the charges approximately 10 years later in 1929.

While Embry leaked, presumably for financial gain, a scheme to get rich off of trading on insider knowledge doesn’t seem like the likely culprit behind this leak.

For all the handwringing about the court’s institutional legitimacy, this leak clearly seems to be a calculated political move designed to harm that legitimacy—which makes it all the worse that some on the left are cheering the move.

Sadly, we have seen this before. In 2020, for example, current Senate Majority Leader Chuck Schumer, D-N.Y., stood on the steps of the Supreme Court just as it was about to hear oral arguments in an abortion case and said, “I want to tell you, [Justice Neil] Gorsuch; I want to tell you, [Justice Brett] Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

This shows the lengths to which some on the left will go in order to tarnish the Court in the service of their extreme positions on abortion (see, for example, hereherehere, and here).

As to the leak itself, one Supreme Court news site said, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”

It’s definitely a sin and an unpardonable one. But is it a federal crime?

Maybe.

Professor Orin Kerr, a noted criminal law scholar, succinctly summarized his initial thoughts by saying, “It’s not clear, I need to go read all the cases and it may depend on the circuit.”

That’s an unsatisfying answer on a visceral level, but it may be the correct one. There’s just too much we don’t know right now.

First, there are no laws that would explicitly cover the unauthorized release of a draft opinion; they’re not classified or national security materials. Maybe Congress could pass a law allowing them to be designated as such, but nothing like that currently exists.

As Kerr points out, obviously, if someone obtained the copy through a hack—a remote but not impossible proposition since Politico’s national security correspondent placed his name on the story’s byline—or stole a physical copy of the draft opinion, those are clearly crimes.

But what if someone who worked for the Supreme Court and had access to it (like a law clerk) released it without permission?

There are a few possibilities for prosecution but nothing that guarantees success.

One remote possibility is prosecution for so-called honest services fraud. As the Congressional Research Service has said, Congress amended 18 U.S.C. §1346, “which defines the crimes of mail and wire fraud,” to make clear that this statute extends “to conduct that deprives a person or group of the right to have another act in accordance with some externally imposed duty or obligation, regardless of whether the victim so deprived has suffered or would suffer a pecuniary harm.”

Moreover, Supreme Court law clerks clearly take an oath pledging to maintain confidential information that they learn about as a result of their jobs in their justice’s chambers. But the Supreme Court has pared back that statute’s reach to cover “only those who, in violation of a fiduciary duty, participate in bribery or kickback schemes” and that seems an unlikely outcome here.

Another remote possibility is prosecution under the Computer Fraud and Abuse Act of 1986, which is codified at 18 U.S.C. §1030. The act makes it a crime “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”

But the court, just last term in Van Buren v. United States, held that this “provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who … have improper motives for obtaining information that is otherwise available to them.”

A final potentially promising possibility is prosecution under 18 U.S.C. §641, which broadly deals with theft, embezzlement, or conversion of government property or governmental “things of value.” The federal government has successfully prosecuted some leakers under this statute, but the federal circuit courts of appeal disagree about whether, and what, information can be a “thing of value.”

But the U.S. Court of Appeals for the District of Columbia Circuit is one of the circuits that has held an intangible item, like information, can be a “thing of value” under this statute, and since the Supreme Court is located within the District of Columbia Circuit­, that increases the odds that this would be a chargeable offense. Still, prosecution under this statute is no slam dunk.

There are other measures that Chief Justice John Roberts could implement which might increase the odds of discovering who the leaker is and of a successful prosecution. 18 U.S.C. §1001 makes it a federal offense to knowingly and willfully make a materially false statement “in any matter within the jurisdiction of the executive, legislative or judicial branch of the Government of the United States … ”

The chief justice could ask all the law clerks, and anyone else who had access to Alito’s draft opinion, to sign a statement saying that they were not the source of the leak. Assuming that they all sign the statement denying being the source of the leak, the chief justice could then ask law enforcement agents to interview each of those individuals. If the interview exposes the leaker, that individual could be prosecuted for having made a false statement in the declaration.

But even if criminal liability does not attach to the person or entity responsible for leaking the draft opinion, professional consequences are sure to follow. As Justice Antonin Scalia told his clerks, “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.”

That sounds harsh. But the stakes are too high and the consequences too devastating to tolerate leaks of draft opinions or deliberations at the Supreme Court. The justices are not politicians and need to have confidence that they can fully and fairly discuss their legal views with their colleagues without these tentative views making front-page news.

Roberts is right that this was an “egregious breach of trust this is an affront to the Court and the community of public servants” who work there. He has directed the Marshal of the Court to launch an investigation into the leak, and the marshal should quickly conduct and complete the investigation and make the results public. Let us hope that the authorities are able to discover who committed this opprobrious act and that serious consequences follow.

At the very least, although an unfortunate measure to have to take, the court should consider taking additional measures in the future, such as adding individual watermarks to each of the drafts that are circulated to other chambers, which would help narrow the search for the culprit should this happen again.

And the Supreme Court should quickly release the final opinion in the leaked case as soon as possible to avoid further threats or attempts to intimidate any of the justices.

This piece originally appeared in The Daily Signal