The Supreme Court Leaker: Lawbreaker Or Whistleblower?

The leak of a draft U.S. Supreme Court opinion that could overturn the landmark 1973 Roe v. Wade decision has sparked intense debate over the leaker's identity and whether they broke the law. The 98-page document, published by Politico, revealed the Court's intention to rule in favour of Mississippi in a case challenging the guarantee of abortion rights. While the opinion is a draft, it indicates a majority of justices are in agreement. This unprecedented leak has been called a stunning and unprecedented breach of trust and security, with Chief Justice John Roberts ordering an investigation and characterising the leak as appalling and an egregious breach. While most observers believe the leak does not constitute a crime, prosecutors could potentially pursue criminal charges, particularly if the leaker obtained the document through illegal means such as theft or hacking.

What are the potential charges?

The leak of a draft U.S. Supreme Court opinion to strike down the landmark 1973 Roe v. Wade decision has sparked intense debate over whether the leaker could face criminal charges or other sanctions. While most observers, including legal experts, opine that the leak is unlikely to implicate criminal law, there are potential charges that could be pursued. Here are the possible charges that could be brought against the leaker:

Theft of Government Property:

Prosecutors could potentially pursue charges for theft of government property. This would depend on how the leaker obtained the document. If the leaker stole the document, for example, by taking it from a briefcase, they could be guilty of theft. However, if the leaker had authorised access to the document, the case for theft becomes more complicated.

Making False Statements to Federal Officials:

If the leaker is a court employee, they could be asked to sign a statement under penalty of perjury, denying their involvement in the leak. Should they lie in such a statement, they could be prosecuted for making false statements to government officials under 18 USC § 1001. This charge carries significant penalties as it is classified as a felony.

Stealing or Converting Federal Government Property for Personal Use:

Even if the leaker had authorised access to the draft opinion, they could potentially be charged with stealing or converting federal government property for their personal use. This charge could apply even though draft Supreme Court opinions are not classified documents.

Obstruction of Justice:

Mike Davis, a former law clerk for Justice Neil Gorsuch, suggested on Twitter that the leaker could become a felon for "obstruction of justice."

Ethics Probe and Disciplinary Action:

If the leaker is an attorney, they could face an ethics probe and disciplinary action from their state bar association. Washington's bar rules, for example, forbid lawyers from "engage(ing) in conduct involving dishonesty, fraud, deceit, or misrepresentation" and "engage(ing) in conduct that seriously interferes with the administration of justice." Leaking a draft opinion would be a violation of court confidentiality rules and could result in disbarment.

While these are the potential charges that could be considered, it is important to note that the leak of a draft Supreme Court ruling appears to be unprecedented, and experts could not recall any high court leak resulting in prosecution or disciplinary action in the past.

What are the chances of a successful prosecution?

The chances of a successful prosecution of the Supreme Court leaker are difficult to determine and subject to varying legal interpretations. While some legal experts argue that the leaker could face criminal charges, others suggest that the likelihood of a successful prosecution is low.

The key factor in determining the chances of a successful prosecution lies in the origin of the leak and the means by which the document was obtained. If the leaker obtained the document through unauthorized means, such as hacking, then criminal charges could be pursued. However, if the leaker had authorized access to the document, the case for prosecution becomes more complicated.

In the case of the Supreme Court leak, there is speculation that a law clerk or court employee with authorized access to the document was responsible for the leak. Zack Smith, a legal fellow, suggests that prosecuting an individual with authorized access is "a more difficult thing to prosecute." He proposes that investigators could instead focus on charging potential suspects with making false statements to government officials during the investigation. This strategy could potentially lead to a successful prosecution under 18 USC § 1001, which pertains to making false statements to certain government officials during investigations.

It is important to note that the Supreme Court leak is unprecedented, and there are no similar cases to draw direct comparisons from. However, past leaks of confidential information have not resulted in prosecution or disciplinary action. Additionally, most commentators agree that federal law does not criminalize court leaks, and the act of leaking a draft opinion may not automatically trigger a criminal investigation.

While the chances of a successful prosecution are uncertain, the impact of the leak on the individual responsible is likely to be significant. The leaker's legal career will almost certainly be affected, as such an act is considered a breach of judicial trust and an "egregious violation of confidentiality."

What are the consequences for the leaker's career?

The consequences of the leak for the leaker's career are likely to be severe. Chief Justice John Roberts, who characterised the leak as an “egregious breach”, an “affront” and “appalling”, ordered the court's marshal to launch an investigation.

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.

Justice Antonin Scalia had a reputation for not mincing words on the subject of leaks. He warned incoming classes of law clerks that he would do "everything in [his] power" to "ruin" the career of any law clerk who betrayed his confidences.

Most observers, including some prominent law professors and other members of the legal commentariat, have opined that the leak does not implicate criminal law. However, if the leaker is found to have lied to an investigator as part of the court's leak probe, they could face a federal false statement charge.

If the leaker is a law clerk, they will be so ethically compromised that a career in the law will almost certainly be out of reach.

What are the consequences for the Supreme Court?

The consequences of the leak for the Supreme Court are likely to be far-reaching and damaging. The leak has been described as a "singular and egregious breach of trust", an earthquake and the worst security breach in the Court's history. It has also been called a historic betrayal of the bench.

The leak has the potential to damage the Court's ability to function, as it relies on the "justices and their staff to be able to freely exchange ideas", and this trust has been violated. This could have a chilling effect on the Court's operations, with justices and staff potentially less likely to share information and ideas for fear of further leaks.

The leak has also led to a loss of respect for the Court and its traditions. The Court has a long-standing tradition of confidentiality and respect for the judicial process, which has been severely undermined. This could result in a loss of public trust and confidence in the Court, and could make it more difficult for the Court to carry out its duties effectively.

There is also the potential for the leak to impact the Court's physical security. The leak has led to protests outside the Court and there are concerns about the potential for violence directed at the justices. This could require increased security measures and further erode the Court's ability to function as an independent and impartial judicial body.

The leak has also prompted calls for an investigation and potential prosecution of the leaker. While it is unclear if any criminal charges will be brought, the mere suggestion of prosecution could further damage the Court's reputation and deter talented law school graduates from seeking positions as law clerks.

Overall, the consequences of the leak for the Supreme Court are likely to be significant and wide-ranging, impacting the Court's operations, security, and public trust.

What was the reaction to the leak?

Reactions to the Leak

The leak of a draft U.S. Supreme Court opinion overturning Roe v. Wade sparked intense national debate and speculation about the leaker's identity and potential criminal or other sanctions. Chief Justice John Roberts called the leak an "egregious breach" and an "appalling" act, ordering the court's marshal, Gail Curley, to launch an investigation. The investigation failed to identify the leaker, even after interviewing at least 97 court personnel.

Legal experts and commentators offered varying perspectives on the leak. Some, like Zack Smith, a legal fellow at the Meese Center for Legal and Judicial Studies, and Clint Ehrlich, an attorney and legal commentator, suggested potential criminal charges for the leaker, including theft of government property and making false statements to federal officials. Smith proposed that investigators could have court employees testify to their innocence in signed testimonies, potentially enabling prosecutors to charge the leaker with making false statements. Ehrlich stated that the leaker could face up to ten years in prison under 18 U.S.C. § 641, which criminalizes the knowing conversion of government records for personal use.

Other experts, however, opined that the leak likely did not violate criminal law. Orin Kerr, a criminal law professor at the University of California, Berkeley, noted that draft Supreme Court opinions are not classified documents, and their disclosure would not automatically trigger a criminal investigation. While Kerr acknowledged that a leaker could potentially be charged with stealing or converting federal government property, he highlighted the rarity of past leaks resulting in prosecution or disciplinary action. Todd Peppers, a professor at Washington and Lee University School of Law, added context by mentioning that a series of leaks in the 1970s led to the adoption of a law clerk code of conduct, prohibiting clerks from disclosing confidential information.

The leak also prompted discussions about ethics and the behaviour of Supreme Court justices. Jodi Kantor, writing for The New York Times, reported on a confidential memo from Justice Gorsuch, in which he opposed any efforts to make the ethics code "enforceable." Kantor's reporting revealed divisions among the justices, with the liberal justices supporting an enforceable code and the conservative justices, particularly Justices Thomas and Alito, criticising the court's critics as politically motivated.

The impact of the leak on the Supreme Court's functioning was a significant concern. Smith emphasised the damage to the free exchange of ideas among justices and their staff, while Tom Fitton, president of Judicial Watch, highlighted the potential for intimidation and violence directed at the justices. The leak also raised questions about the integrity of the court and the possibility of justices being swayed by public pressure, with Fitton stating, "The Court was damaged. We need to know how much, and if it can be repaired."

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