“Betraying the Bench: Could the SCOTUS Leaker Face Criminal Charges?”

From three former federal prosecutors, one of whom is a federal judge. In Bloomberg Law:

Corruptly Influencing an Official Proceeding

Enacted with the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1512(c)(2) makes it criminal to, among other things, corruptly influence an “official proceeding.” The issuance of an opinion certainly is part of an official proceeding, and, depending on the evidence, it is foreseeable that a law clerk could seek to corruptly (that is, wrongly, as in United States v. Nordean) influence a proceeding by, say, changing the outcome of the justices’ vote or the scope of the court’s holding, through external pressure, threat, intimidation, or otherwise.

Theft of Government Property

The taking of the confidential work product of the justices may also implicate 18 U.S.C. § 641, because, broadly described, it is the theft of government “property.” Perhaps the law clerk “stole” the paper (“thing of value”) on which the ruling was printed. If, as is likely, the value of the thing stolen is under $1,000, however, we are in misdemeanor territory.

The more substantive question, characterized by a current circuit split, is whether confidential “information” qualifies as a “thing of value.” As the U.S. Court of Appeals for the Second Circuit put it more than 40 years ago, the government has a “property interest in certain of its private records which it may protect by statute as a thing of value.”

It is hard to disagree. After all, federal courts decide issues of enormous economic, social, and legal importance (and value). Advance notice of a court decision creating or removing an asserted right or privilege (or ruling in favor of one litigant or another in a business dispute) would appear to be especially “valuable.” (See also United States v. Middendorf—intangible confidential information is “property.”)

Disclosure of Confidential Information

The disclosure of confidential court information might also fit well within the parameters of the oft-overlooked misdemeanor statute, 18 U.S.C. § 1905 (prohibiting the “disclosure of confidential information generally”). Law clerks are federal employees, the information they obtain is “confidential,” it comes to them “in the course of [their] employment,” and the disclosure is not “authorized by law.” (United States v. WallingtonU.S.Customs Service employeerunning unauthorized background checks for a friend; the confidential information need not come from, nor be generated by, a private party.)

Although it is true that the only Section 1905 prosecutions thus far have been brought against executive branch employees, this bit of legal historiography offers little protection to judicial or legislative branch employees. After all, the text applies to any “officer or employee of the United States,” which includes, but is not limited to, any “department or agency thereof.”

Finally, the fact of a 5-to-4 split ruling, the outcome of a case, or similar information can be said to “concern” or “relate to” the judicial “process,” “operation,” or “style of work,”—at least, the prosecutor will so argue (although there is some room for defense counsel to claim otherwise).

Conspiracy to Defraud the U.S.

In 1919, Ashton Embry, a clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company. He was indicted for having violated 18 U.S.C. § 371. The prosecution’s theory was that, by releasing the opinion early, the clerk and his “co-conspirators deprived the Court of the right to announce its decisions at the customary time.”

In short, the early release upset the court’s established custom. The district court rejected Embry’s motion to dismiss, but the prosecutor thereafter, for undisclosed reasons, dismissed the case. Although the case was not seen to its conclusion, the unfinished prosecution of Embry is interesting if for no other reason than that it belies recent assertions that law clerk leaking is terra incognita. (Middendorf—holding that intent to defraud by sharing intangible information may be “incidental to another primary motivation.)

The widespread claims that the criminal prosecution of a law clerk leaker would require a prosecutor to “cook up creative theories,” that it would be a “stretch” for the Justice Department to “even investigate the matter,” and that there “is no criminal statute” that makes the leaking of draft opinions “illegal” are off-base. When the facts call for it, the existing statutory framework will not stymie a prosecutor dedicated to protecting the integrity of the judicial process.

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