Is leaking a Supreme Court opinion a crime? The law is far from clear

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A leak seismic project of the Supreme Court opinion, which would cancel Rowe vs. Wade somehow managed to generate roughly equal outpourings of anger from the right and the left overnight: the left rallied to denounce a decision that would upend a 50-year-old cornerstone of reproductive rights. The Conservatives, despite the historic victory this decision will bring to their side, meanwhile have aimed their political outrage at a much more specific person: the leak.

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In just a few hours Politico published a draft majority decision written by Supreme Court Justice Samuel Alito calling Caviar a decision “manifestly wrong from the outset” and overturning this fifty-year-old precedent, the figures on the right in unison calls for study of and prosecution anonymous source”illegala leak. CBS News went so far as to report – somewhat vaguely – that pending investigation “involving the FBI” of the source of the leak. And Chief Justice John Roberts opened an investigation into disclosure.

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But all this furor is overshadowed by an inconvenient legal truth: leaking information about a Supreme Court decision is not really a crime – at least according to some clear and undeniable definition. “It’s not clear at this time if the insider broke any law,” says Trevor Timm, a First Amendment lawyer and executive director of the Freedom of the Press Foundation. “Even the people claiming that this action is out of bounds and that the FBI should investigate did not point to the final law that this whistleblower allegedly violated.”

Timm quotes long thread on twitter published late Monday by renowned UC Berkeley legal scholar Orin Kerr, who responded to the Monday night leak by pointing out that the Supreme Court draft did not meet any of the obvious criteria that would make it an illegal document in a journalist’s hand: , it is not classified, so leaking information does not lead to prosecution under the Espionage Act. “As far as I can tell, there is no federal criminal law that expressly prohibits disclosure of a draft legal opinion,” Kerr said. concluded.

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Of course, if the source is someone who hacked into the computer of, say, a Supreme Court justice or law clerk, or stole paper from their desk, the leak could be held liable for computer fraud, abuse, or theft, Kerr points out. But otherwise, despite the historical rarity of Supreme Court leaks and the politically radioactive nature of the leak, Kerr argues that there is no argument for federal prosecution of leaks.

Instead, Kerr proposes that any U.S. attorney trying to bring charges against PoliticoThe whistleblower may have to resort to a much more shaky statute known as 18 USC § 641. This broad statute prohibits the theft or misuse of government-owned “values”—a broadly written statute seemingly superficially designed to prevent embezzlement or bribery by persons with access to state property. But whether this applies to information — and what information is provided to whom — remains an open question in federal law, as different district courts disagree fundamentally in their decisions.

“Jurisprudence provides little clarity as to the interpretation of § 641; only a few scholars have even acknowledged the application of § 641 to information,” the article says. Columbia Law Review article about the use of the statute by Jessica Lutkenhaus, a criminal defense attorney at the law firm Wilmer Hale, to pursue leaks. “Contours disagree as to whether § 641 applies to information, and if so, what is its scope: what information constitutes ‘value’?”

Sharing information may be fundamentally different from stealing “value,” says Timm of the Freedom of the Press Foundation. “You can’t steal a government jeep or take anything tangible or physical from government offices,” says Timm. “But copying something can be construed as different from stealing something. You copy it and the original stays in place and you just walk away with papers that didn’t exist before.”

This ambiguity has led various federal courts to conflicting conclusions. The Fourth Circuit, for example, found in 1991 that a Department of Defense employee who left the Department of Defense to work for a defense contractor and took information with him was guilty of a Section 641 violation. But the Ninth Circuit found the opposite. conclusion, finding in a 1959 case that “intangible” goods were not covered by § 641. This decision was later applied in 1988 by the same circuit to a leak case, a naval officer accused of stealing computer punched cards related to secret encryption information. The court upheld that the information itself was not subject to § 641, although its appeal was still dismissed because he had stolen the physical punch cards in which it was stored.

Other district courts have come to intermediate conclusions, such as some finding that § 641 does apply to leaks, but noting that this does not apply to those covered by First Amendment protections for free speech and freedom of the press—findings of direct relevance to PoliticoSupreme Court Liquor.

Some of the most notorious leakers in history have also been charged under 18 USC § 641, including Daniel Ellsberg, Chelsea Manning and Edward Snowden. But the application of this law was marred by their prosecution under the Espionage Act, as all three were accused of divulging classified information, and none of them set a clear precedent. Ellsberg’s charges were dropped due to misconduct by the Nixon administration, and Snowden has yet to face trial. Manning was convicted under 18 USC 641, which she faced, but in a military court, not a civilian one.

All this leaves a legal status PoliticoThe leader of the leak – if they are identified – is far from certain. But any strong argument that they committed a crime is just as shaky, Timm argues. And this is especially true in the case where the source of the leak appears to have leaked the document directly to the press, clearly interested in making the information public.

“Even if prosecutors believe that 18 USC § 641 applies, I have serious concerns that the First Amendment could apply broadly to anyone who releases a government document to the press,” says Timm. “Leaks to the press are like apple pie for America. And in many cases throughout history, they have contributed to democracy rather than hindered it.”


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