Breaking News
Get Actionable Insights with InvestingPro+: Start 7 Day FREE Trial Register here
Investing Pro 0
Ad-Free Version. Upgrade your Investing.com experience. Save up to 40% More details

Explainer-Is it illegal to leak a U.S. Supreme Court opinion?

World May 03, 2022 05:11PM ET
Saved. See Saved Items.
This article has already been saved in your Saved Items
 
© Reuters. Police officers stand outside the U.S. Supreme Court as demonstrators protest after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision la

By Mike Scarcella, Karen Sloan and Jacqueline Thomsen

(Reuters) - The leak of a draft U.S. Supreme Court opinion striking down the landmark 1973 Roe v. Wade decision that legalized abortion has spurned intense national debate over the identity of the leaker and whether the person could face criminal or other sanctions.

Here is a look at some of the big questions.

COULD LEAKING A SUPREME COURT RULING BE PROSECUTED AS A CRIME?

That depends on the origin of the leak and whether any crimes were committed in obtaining the document, such as hacking into a unauthorized computer.

Drafts of Supreme Court opinions are not classified documents like national security files, said University of California, Berkeley criminal law professor Orin Kerr, meaning their disclosure would not automatically trigger a criminal investigation. But even a leaker with authority to handle a draft opinion could potentially be charged with stealing or converting federal government property for their own use, he said.

Anyone who lies to an investigator as part of the court's leak probe could also face a federal false statement charge, said Kel McClanahan, an adjunct professor at George Washington University Law School who specializes in national security law.

WHO WILL INVESTIGATE THE LEAK?

Chief Justice John Roberts said Tuesday that he has directed the court's marshal to investigate the leak, calling it an "egregious breach." Roberts said the draft decision was authentic but not final.

The marshal is the court's chief security officer and facilities administrator, overseeing the court's police force. Gail Curley, former chief of the National Security Law Division in the U.S. Army's Judge Advocate General office, took up the post last year. She did not immediately respond to a request for comment on the leak probe.

The Supreme Court marshal is not part of the U.S. Marshals Service or the Justice Department, but the police she supervises can make arrests and her findings could be referred to federal prosecutors.

COULD THERE BE AN ETHICS PROBE IF THE LEAKER IS AN ATTORNEY?

Yes. Washington's bar and others have rules that forbid lawyers to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." The Washington bar also has a rule that says lawyers cannot "engage in conduct that seriously interferes with the administration of justice." Attorney disciplinary officials can investigate matters on their own or respond to complaints.

Leaking a draft opinion would be a violation of court confidentiality rules and could result in disbarment, Kerr said. "This is the most egregious violation of confidentiality for a staff member or employee of the court that you can imagine," he said.

Experts cautioned that the leak would need to involve a licensed member of a state bar for attorney conduct provisions to apply. Not every federal law clerk is a member of a bar, and it is unclear whether a law clerk had any involvement.

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.

WHAT HAPPENED AFTER PAST SUPREME COURT LEAKS?

The leak of a draft Supreme Court ruling appears to be unprecedented. However, leakers have shared information about internal court dynamics or deliberations after opinions were issued. That happened with the high-profile Bush v. Gore case that decided the outcome of the 2000 presidential election, and also in 1998 when Edward Lazarus, a former clerk for Justice Harry Blackmun, wrote a tell-all book about his time there. Experts could not recall any high court leak resulting in prosecution or disciplinary action.

A series of leaks in the 1970s prompted the federal courts to adopt a law clerk code of conduct, said Todd Peppers, a professor of practice at Washington and Lee University School of Law who studies Supreme Court clerks. The code prohibits clerks from disclosing "confidential information received in the course of official duties."

Chief Justice Roberts delivers a lecture each year to new clerks saying leaks will be punished severely, said Supreme Court expert Josh Blackman of South Texas College of Law Houston.

Explainer-Is it illegal to leak a U.S. Supreme Court opinion?
 

Related Articles

Add a Comment

Comment Guidelines

We encourage you to use comments to engage with other users, share your perspective and ask questions of authors and each other. However, in order to maintain the high level of discourse we’ve all come to value and expect, please keep the following criteria in mind:  

  •            Enrich the conversation, don’t trash it.

  •           Stay focused and on track. Only post material that’s relevant to the topic being discussed. 

  •           Be respectful. Even negative opinions can be framed positively and diplomatically. Avoid profanity, slander or personal attacks directed at an author or another user. Racism, sexism and other forms of discrimination will not be tolerated.

  • Use standard writing style. Include punctuation and upper and lower cases. Comments that are written in all caps and contain excessive use of symbols will be removed.
  • NOTE: Spam and/or promotional messages and comments containing links will be removed. Phone numbers, email addresses, links to personal or business websites, Skype/Telegram/WhatsApp etc. addresses (including links to groups) will also be removed; self-promotional material or business-related solicitations or PR (ie, contact me for signals/advice etc.), and/or any other comment that contains personal contact specifcs or advertising will be removed as well. In addition, any of the above-mentioned violations may result in suspension of your account.
  • Doxxing. We do not allow any sharing of private or personal contact or other information about any individual or organization. This will result in immediate suspension of the commentor and his or her account.
  • Don’t monopolize the conversation. We appreciate passion and conviction, but we also strongly believe in giving everyone a chance to air their point of view. Therefore, in addition to civil interaction, we expect commenters to offer their opinions succinctly and thoughtfully, but not so repeatedly that others are annoyed or offended. If we receive complaints about individuals who take over a thread or forum, we reserve the right to ban them from the site, without recourse.
  • Only English comments will be allowed.

Perpetrators of spam or abuse will be deleted from the site and prohibited from future registration at Investing.com’s discretion.

Write your thoughts here
 
Are you sure you want to delete this chart?
 
Post
Post also to:
 
Replace the attached chart with a new chart ?
1000
Your ability to comment is currently suspended due to negative user reports. Your status will be reviewed by our moderators.
Please wait a minute before you try to comment again.
Thanks for your comment. Please note that all comments are pending until approved by our moderators. It may therefore take some time before it appears on our website.
Comments (2)
gab nea
gab nea May 04, 2022 6:49AM ET
Saved. See Saved Items.
This comment has already been saved in your Saved Items
punish the disgraced ex president for his lawlessness first, lackeys!
gab nea
gab nea May 04, 2022 6:48AM ET
Saved. See Saved Items.
This comment has already been saved in your Saved Items
to the republican nuts, the leak is more relevant than the content of the document, lost souls!
 
Are you sure you want to delete this chart?
 
Post
 
Replace the attached chart with a new chart ?
1000
Your ability to comment is currently suspended due to negative user reports. Your status will be reviewed by our moderators.
Please wait a minute before you try to comment again.
Add Chart to Comment
Confirm Block

Are you sure you want to block %USER_NAME%?

By doing so, you and %USER_NAME% will not be able to see any of each other's Investing.com's posts.

%USER_NAME% was successfully added to your Block List

Since you’ve just unblocked this person, you must wait 48 hours before renewing the block.

Report this comment

I feel that this comment is:

Comment flagged

Thank You!

Your report has been sent to our moderators for review
Continue with Google
or
Sign up with Email