Expiry of seismic draft opinion from the US Supreme Court that will be overturned Roe v. Wade somehow managed overnight to provoke roughly equal outpourings of anger from the right and the left: the left united to condemn a decision that would overturn a 50-year-old cornerstone of reproductive rights. Conservatives, despite the historic victory the ruling would represent for their country, have meanwhile directed their political outrage at a much more specific figure: the leaker.
Just hours after Politico published a draft of the majority decision, written by Justice Samuel Alito, calling Rowe decision “grossly wrong from the start” and rejecting five decades of precedent, figures on the right have issued a chorus of calls for an investigation and criminal prosecution to the anonymous source of “illegal” leak. CBS News went so far as to report — somewhat vaguely — that it expects an investigation “involving the FBI” into the source of the leak. And Chief Justice John Roberts initiate an investigation in disclosure.
But all that furore is undercut by an inconvenient legal truth: leaking information about a Supreme Court decision doesn’t really seem like a crime—at least not by any clear and indisputable definition. “It’s unclear at this point whether the leaker broke any law at all,” said Trevor Timm, a First Amendment-focused attorney and executive director of the Freedom of the Press Foundation. “Even the people who claim this act is out of bounds and the FBI should be investigating have not pointed to a definitive law that this leak broke.”
Tim quotes a long thread on Twitter published late Monday by prominent UC Berkeley legal scholar Orrin Kerr, who responded to the leak Monday night by pointing out that the Supreme Court’s draft does not meet any of the obvious criteria that would make it an illegal document to transmission to a journalist: Crucially, it is not classified, so its leak does not lead to prosecution of the leaker under the Espionage Act. “As far as I can tell, there is no federal criminal statute that directly prohibits the disclosure of a draft legal opinion,” Kerr. concluded.
Of course, if the source is someone who hacked the computer of, say, a Supreme Court justice or law clerk — or snuck the paper off their desk — the leaker could be prosecuted for computer fraud and misappropriation or theft, Kerr points out. But otherwise, despite the historic rarity of a Supreme Court leak and the politically radioactive nature of it, Kerr argues there is no case for prosecuting leaks.
Instead, Kerr suggests, any federal prosecutor looking to prosecute a Politico leak might have to resort to a far shakier law known as 18 USC § 641. That broad law prohibits the theft or misuse of government “things of value” — a broadly written law seemingly created on the surface to prevent abuse or bribery by those who have access to government property. But whether it applies to information—and what kind of information given to whom—remains an open question in federal law, with the various district courts fundamentally disagreeing in their rulings.
“Jurisprudence provides little clarity regarding the interpretation of § 641; only a few scholars have even recognized the application of § 641 to information,” states a Columbia Law Review article on using statutes to prosecute lapsed written by Jessica Lutkenhaus, an attorney focused on criminal defense at the law firm of Wilmer Hale. “The circuits disagree about whether § 641 applies to information and, if so, what its scope is: What information constitutes a “thing of value”?”
Sharing information can be very different from stealing “something valuable,” says Tim of the Freedom of the Press Foundation. “You can’t steal a government jeep or take anything material or physical from government offices,” says Tim. “But copying something can be interpreted as different from stealing something. You copy it and the original is still there and you just walk away with documents that didn’t exist before.”
