Not long after the historic leak Monday night of a draft Supreme Court opinion that would overturn the right to abortion established in Roe v. Wade, the calls began for the U.S. Justice Department to identify and criminally charge the leaker.
“If there’s not thorough criminal investigation into who leaked privileged documents from the United States Supreme Court then we live in a clown show state,” Donald Trump Jr., the former president’s son, wrote on Twitter.
Chief Justice John G. Roberts Jr. said he was directing the Supreme Court’s marshal to open an investigation into how the document became public — a situation essentially unheard of in the high court’s history. But while the leaker or leakers might face professional consequences — such as getting fired or losing their law license — legal analysts say they will almost certainly not face any criminal exposure, provided they had legitimate access to the document.
Experts also said it might be a stretch of the Justice Department’s authority to even investigate the matter — unless evidence emerged to point to another crime, such as a break-in at the court or hacking of the court’s systems.
“Unless the draft was obtained through means that were themselves unlawful, I’m having a really hard time seeing what crime was committed in leaking it to the press,” University of Texas Law School Professor Stephen I. Vladeck said, adding later: “That doesn’t mean that there won’t or can’t be an investigation, but I’d be really surprised if it ended up with any kind of criminal charge.”
A draft Supreme Court opinion is not classified, which is typically the basis for leak investigations. And while someone could argue that sharing the document with a reporter amounts to theft of government property, the department’s own guidance suggests it would not charge a leak like this as a crime.
“I am extremely skeptical of what basis or what authority the Justice Department would have to inquire into this matter,” said national security and whistleblower lawyer Bradley P. Moss. “It is certainly a fireable offense — without question — but there is no obvious criminal provision that would apply.”
A Justice Department spokesman declined to comment.
The 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.
Politico — which broke the news of the draft opinion and posted a copy of the document on its website — said only that it “received a copy of the draft opinion from a person familiar with the court’s proceedings.” It did not identify the person.
In the early 1900s, the Justice Department pursued a case against a clerk who had been accused of sharing Supreme Court decisions with Wall Street insiders before they were released. Today, such an allegation might be considered part of an insider trading conspiracy, a crime that the department would investigate. But those laws did not exist a century ago.
Instead, prosecutors alleged a conspiracy “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,” according to research by Federal Appeals Court Judge John Owens. The case ultimately fell apart.
Moss, the national security lawyer, conceded that it was possible the department could investigate the leak — even if criminal charges were unlikely.
“Could they the theoretically get away with that as sufficient predicate? I guess, in theory, they could,” he said. “It’s just a serious stretch.”
Devlin Barrett and Ann E. Marimow contributed to this report.
