Is it a Crime to Reveal a Draft of a Supreme Court Decision?

According to the Washington Post, “(t)he law that could be at issue is 18 U.S.C. 641 —which prohibits the theft or receipt of stolen government information, as well as theft of the documents. That could apply to Supreme Court documents. But the Justice Department’s criminal division has said, as a matter of policy, that it would be inappropriate to bring a prosecution under the law in the following circumstances: when the thing alleged to have been stolen was ‘intangible property, i.e., government information’; when the person ‘obtained or used the property primarily for the purpose of disseminating it to the public’; and when the property was not obtained by wiretapping, interception of correspondence or trespassing. In other words, if someone with legitimate access to the draft — such as a justice, clerk or administrative assistant — leaked the information because they thought the public should know about it, the Justice Department would not treat the leak as a crime.” In other words, while there are criminal charges available, don’t hold your breath waiting for Merrick Garland to look up from his prosecution of January 6th trespassers and charge someone with misappropriation of a draft opinion from the US Supreme Court.  Particularly when his boss Joe Biden did not decry the breech of the Court’s security, but instead, took the opportunity to reiterate his support of abortion rights.  “I believe that a woman’s right to choose is fundamental,” President Biden stated. “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned…I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights.” Still, this does not mean the leaker, when caught, won’t be facing some serious consequences.  According to “national security and whistleblower lawyer Bradley P. Moss, “It is certainly a fireable offense — without question.'”  Thus, if the leaker is a non-attorney, he or she can expect to lose their job at the Supreme Court – and probably be hired by Planned Parenthood within the week. Unless they lie to the Court’s marshal in the course of her investigation.  In that case, you can more readily expect charges to be pressed for lying to investigators. However, if the leaker turns out to be an attorney, there is a greater likelihood of severe ethical ramifications.   “Washington (DC)’s bar and others have rules that forbid lawyers to ‘engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ The Washington bar also has a rule that says lawyers cannot ‘engage in conduct that seriously interferes with the administration of justice.’ Attorney disciplinary officials can investigate matters on their own or respond to complaints.” Even the aforementioned legal scholar Orrin Kerr believes that “(l)eaking a draft opinion would be a violation of court confidentiality rules and could result in disbarment…’This is the most egregious violation of confidentiality for a staff member or employee of the court that you can imagine,’ he said.” Further, “Michael Frisch, a former disciplinary counsel in Washington, said if the leaker is identified as an attorney, it would fall to the bar where that lawyer is a member to investigate. ‘It’s going to be a career-defining, if not career-ending moment,’ Frisch said.” With the Chief Justice of the US Supreme Court as the complainant, it will be very difficult for any attorney to escape serious disciplinary penalties for revealing Justice Alito’s draft opinion.  Disbarment, or at the very least, a lengthy period of suspension from practice, is most likely. But whatever penalty is exacted – whether criminal charges, loss of employment, suspension from practice or disbarment – expect abortion supporters, and the left in general, to celebrate the leaker, and to argue that the means justifies the ends. Judge Wilson (ret.) served on the bench in NYC. Illustration: Pixabay