The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Zack Smith & John Malcolm (Heritage Foundation's Daily Signal); Malcolm had been a federal prosecutor for 10 years:
First, there are no laws that would explicitly cover the unauthorized release of a draft opinion; they're not classified or national security materials. Maybe Congress could pass a law allowing them to be designated as such, but nothing like that currently exists.
As [Orin] Kerr points out, obviously, if someone obtained the copy through a hack—a remote but not impossible proposition since Politico's national security correspondent placed his name on the story's byline—or stole a physical copy of the draft opinion, those are clearly crimes.
But what if someone who worked for the Supreme Court and had access to it (like a law clerk) released it without permission?
There are a few possibilities for prosecution but nothing that guarantees success.
One remote possibility is prosecution for so-called honest services fraud. As the Congressional Research Service has said, Congress amended 18 U.S.C. §1346, "which defines the crimes of mail and wire fraud," to make clear that this statute extends "to conduct that deprives a person or group of the right to have another act in accordance with some externally imposed duty or obligation, regardless of whether the victim so deprived has suffered or would suffer a pecuniary harm."
Moreover, Supreme Court law clerks clearly take an oath pledging to maintain confidential information that they learn about as a result of their jobs in their justice's chambers. But the Supreme Court has pared back that statute's reach to cover "only those who, in violation of a fiduciary duty, participate in bribery or kickback schemes" and that seems an unlikely outcome here.
Another remote possibility is prosecution under the Computer Fraud and Abuse Act of 1986, which is codified at 18 U.S.C. §1030. The act makes it a crime "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."
But the court, just last term in Van Buren v. United States, held that this "provision covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who … have improper motives for obtaining information that is otherwise available to them."
A final potentially promising possibility is prosecution under 18 U.S.C. §641, which broadly deals with theft, embezzlement, or conversion of government property or governmental "things of value." The federal government has successfully prosecuted some leakers under this statute, but the federal circuit courts of appeal disagree about whether, and what, information can be a "thing of value."
But the U.S. Court of Appeals for the District of Columbia Circuit is one of the circuits that has held an intangible item, like information, can be a "thing of value" under this statute, and since the Supreme Court is located within the District of Columbia Circuit, that increases the odds that this would be a chargeable offense. Still, prosecution under this statute is no slam dunk.
There are other measures that Chief Justice John Roberts could implement which might increase the odds of discovering who the leaker is and of a successful prosecution. 18 U.S.C. §1001 makes it a federal offense to knowingly and willfully make a materially false statement "in any matter within the jurisdiction of the executive, legislative or judicial branch of the Government of the United States … "
The chief justice could ask all the law clerks, and anyone else who had access to Alito's draft opinion, to sign a statement saying that they were not the source of the leak. Assuming that they all sign the statement denying being the source of the leak, the chief justice could then ask law enforcement agents to interview each of those individuals. If the interview exposes the leaker, that individual could be prosecuted for having made a false statement in the declaration….