“The Possibility of Prosecuting Federal Court Leakers—Update & Rejoinder”
I much appreciate their writing this, and am delighted to pass it along:
We are grateful to Professor Volokh for featuring our June 1 Wall Street Journal op-ed (and, previously, our Bloomberg Law article) questioning common claims that there is no federal law criminalizing the leaking of court-sensitive information, such as a draft Supreme Court opinion. In his parting comments on the WSJ piece, Eugene observes that he is “not sure how viable these arguments are,” and then observes two discrete issues. True to form, Eugene has kindly afforded us an opportunity to respond.
Let us kick things off by some early, but necessary, scene (re-)setting. The goals of our articles were modest. We read the near-unanimous claims, advanced in outlets ranging from the Washington Post, Reuters, and Wired to USA Today, PolitiFact, Fox, and Bloomberg, that “leaking [court-sensitive information]” is not—and, indeed, could likely never be—a crime. Could this steady drumbeat of headlines possibly be accurate? And is there really a need for the proposed “Leaker Accountability Act of 2022” designed to, per The Hill, “criminalize Supreme Court leaks”?
We conducted some research into whether federal law clerks (and, for that matter, other chambers staff) at the Supreme Court or in the lower courts could share court-sensitive information with the outside world without fear of prosecution. We then decided to put “pen to paper” regarding our findings (subject, of course, to unyielding word-count maximums).
Our conclusion was that, with the exception of Andrew McCarthy and a few others, most in the legal commentariat jumped the gun. Depending on how the all-important facts turn out, we believe the following statutes could all be in play when a member of a federal judge’s staff, including a law clerk, leaks court-sensitive information: 18 U.S.C. §§ 371 (conspiracy), 641 (theft of government property/information), 1001 (false statement), 1512 (corruptly influencing an official proceeding), and 1905 (disclosure of confidential information). (For present purposes we assumed that a Justice did not leak the draft Supreme Court opinion. As such, we did not address what, if any, consequences such a Justice could face, especially given the Constitutional dimensions of the question.)
Of course, saying that the Department of Justice could bring criminal charges is not the same as taking a position about whether a law clerk leaker should be prosecuted or whether a particular statute must apply. That certainly is not what we were saying—or have ever said. And how could we? The facts are undeveloped. The investigation is ongoing. The aggravating and mitigating factors are unknown.
Further, and equally overlooked by many, is the fact that before any federal prosecutor would file charges, the prosecutor must first conduct an investigation. The ability to investigate necessarily should be predicated on a good-faith legal theory, even if generally untested. So long as a legal predicate justifies the criminal investigation, federal prosecutors may make use of the considerable investigative tools within their power to assess whether identifiable criminal statutes have been violated. These tools include the power to subpoena phone records, texts, and testimony, and issue search warrants for, say, email accounts and the contents of laptops. If the pundits are correct that there is no criminal law that could be broken here, then there also is no predicate for taking vital (and traditional) investigative steps, such as opening a federal grand jury investigation.
With these preliminary observations addressed, we turn to the two specific questions Eugene raises about our Section 1905 and 1512 prosecution theories. (We note that Eugene did not direct any critiques at our Sections 371, 641, and 1001 arguments. We appreciate that this doesn’t necessarily
Article from Reason.com
