"Betraying the Bench: Could the SCOTUS Leaker Face Criminal Charges?"

An interesting article by two former prosecutors (T. Markus Funk and Andrew S. Boutros) and District Judge Virginia M. Kendall (N.D. Ill.)

From a Bloomberg Law column today, reprinted with permission; I can't opine on the matter myself, but it struck me as worth passing along, and I'd of course also be glad to link to other views on the subject:

The possibility that a U.S. Supreme Court law clerk may have leaked a draft opinion to a Politico reporter has shined a rare spotlight on the consequences facing law clerks who betray judicial trust. Chief Justice John Roberts, who characterized the leak as "appalling," ordered the court's marshal to launch an investigation.

No doubt leaking internal court documents and other sensitive information—whether at the Supreme Court or in a lower court—threatens to end a promising legal career before it has launched, and for good reasons. But does such a bold breach also implicate the criminal law?

Most observers, including some prominent law professors and other members of the legal commentariat sharing their perspectives in outlets such as the New York Times, Washington Post, Reuters, Wired, USA Today, and Politifact, have opined that it likely does not.

As three former federal prosecutors who have been working on criminal cases for some 75 years combined, we offer a different perspective.

Violating the Hallowed Trust

Those lucky enough to have served as judicial law clerks, whether in the federal or state courts, will at some point early on have been warned that the dissemination of court-confidential information is a categorical "no-no." As Justice Antonin Scalia is reported to have put it with characteristic candor: "If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career."

But no matter how it is articulated, there is no mistaking the solemn expectation that what happens in chambers stays in chambers.

More than just common practice (not to mention common sense), federal law clerks, and even interns, fall under the same code of conduct covering federal judges. They must, among other things, uphold the integrity of the court, refrain from political activity, and adhere to the highest standards of confidentiality. But can a federal law clerk's ethical breach cross into a violation of criminal law?

The short answer is very likely. A federal prosecutor focused on protecting the integrity of the judicial process, and armed with persuasive evidence of intentional leaking, will almost certainly be able to present charges to a federal grand jury.

Of course, reasonable minds can still disagree on whether prosecutorial discretion should be exercised in favor of lenity, and whether, depending on the circumstances, deferring to state bar ethics authorities is preferable. Those latter issues, however, go to judgment. What we are focused on here, in contrast, is what some might say is the inaccurate claim that federal law somehow precludes prosecution.

Many of the prosecutorial strategies discussed by pundits are, in fact, non-starters. For example, a draft ruling or similar court-sensitive information is not classified, so the Espionage Act (18 U.S.C. § 798) is unavailable.

Further, law clerks almost always have lawful access to the drafts and similar information stored on court computer systems, rendering the hacking statute (18 U.S.C. § 1030), particularly as interpreted in Van Buren v. United States, inapplicable.

Finally, the act of leaking itself does not constitute a false statement (18 U.S.C § 1001). The court's marshal, however, certainly could ask the clerks whether they engaged in leaking conduct. If it turns out that one of them falsely denied involvement, a Section 1001 charge could be brought.

This, however, is far from the end of the conversation.

Corruptly Influencing an Official Proceeding

Enacted with the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1512(c)(2) makes it criminal to, among other things, corruptly influence an "official proceeding." The issuance of an opinion certainly is part of an official proceeding, and, depending on the evidence, it is foreseeable that a law clerk could seek to corruptly (that is, wrongly, as in United States v. Nordean) influence a proceeding by, say, changing the outcome of the justices' vote or the scope of the court's holding, through external pressure, threat, intimidation, or otherwise.

Theft of Government Property

The taking of the confidential work product of the justices may also implicate 18 U.S.C. § 641, because, broadly described, it is the theft of government "property." Perhaps the law clerk "stole" the paper ("thing of value") on which the ruling was printed. If, as is likely, the value of the thing stolen is under $1,000, however, we are in misdemeanor territory.

The more substantive question, characterized by a current circuit split, is whether confidential "information" qualifies as a "thing of value." As the U.S. Court of Appeals for the Second Circuit put it more than 40 years ago, the government has a "property interest in certain of its private records which it may protect by statute as a thing of value."

It is hard to disagree. After all, federal courts decide issues of enormous economic, social, and legal importance (and value). Advance notice of a court decision creating or removing an asserted right or privilege (or ruling in favor of one litigant or another in a business dispute) would appear to be especially "valuable." (See also United States v. Middendorf—intangible confidential information is "property.")

Disclosure of Confidential Information

The disclosure of confidential court information might also fit well within the parameters of the oft-overlooked misdemeanor statute, 18 U.S.C. § 1905 (prohibiting the "disclosure of confidential information generally"). Law clerks are federal employees, the information they obtain is "confidential," it comes to them "in the course of [their] employment," and the disclosure is not "authorized by law." (United States v. Wallington—U.S. Customs Service employee running unauthorized background checks for a friend; the confidential information need not come from, nor be generated by, a private party.)

Although it is true that the only Section 1905 prosecutions thus far have been brought against executive branch employees, this bit of legal historiography offers little protection to judicial or legislative branch employees. After all, the text applies to any "officer or employee of the United States," which includes, but is not limited to, any "department or agency thereof."

Finally, the fact of a 5-to-4 split ruling, the outcome of a case, or similar information can be said to "concern" or "relate to" the judicial "process," "operation," or "style of work,"—at least, the prosecutor will so argue (although there is some room for defense counsel to claim otherwise).

Conspiracy to Defraud the U.S.

In 1919, Ashton Embry, a clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company. He was indicted for having violated 18 U.S.C. § 371. The prosecution's theory was that, by releasing the opinion early, the clerk and his "co-conspirators deprived the Court of the right to announce its decisions at the customary time."

In short, the early release upset the court's established custom. The district court rejected Embry's motion to dismiss, but the prosecutor thereafter, for undisclosed reasons, dismissed the case. Although the case was not seen to its conclusion, the unfinished prosecution of Embry is interesting if for no other reason than that it belies recent assertions that law clerk leaking is terra incognita. (Middendorf—holding that intent to defraud by sharing intangible information may be "incidental to another primary motivation.)

The widespread claims that the criminal prosecution of a law clerk leaker would require a prosecutor to "cook up creative theories," that it would be a "stretch" for the Justice Department to "even investigate the matter," and that there "is no criminal statute" that makes the leaking of draft opinions "illegal" are off-base. When the facts call for it, the existing statutory framework will not stymie a prosecutor dedicated to protecting the integrity of the judicial process….

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T. Markus Funk, a former assistant U.S. attorney in Chicago, is a partner at Perkins Coie and most recently served as the chair of the firm's White Collar & Investigations practice. He served as a clerk to Judge Morris S. Arnold (U.S. Court of Appeals for the Eighth Circuit) and Judge Catherine D. Perry (Eastern District of Missouri). [He has also written extensively on various topics, both in academic journals and in other publications; he and I cowrote a Bloomberg Law piece on self-defense two months ago. -EV]

Andrew S. Boutros, a former assistant U.S. attorney in Chicago, is a partner at Dechert LLP and serves as the regional chair of the firm's White Collar practice. He is also a lecturer at the University of Chicago Law School and served a clerk to Judge Eugene E. Siler Jr. of the U.S. Court of Appeals for the Sixth Circuit.

Judge Virginia M. Kendall is a U.S. District Court judge in the Northern District of Illinois in Chicago. She trains judicial law clerks on ethics and served six years on the Judicial Codes of Conduct Committee of the U.S. Judicial Conference. She is also a lecturer at the University of Chicago Law School and was a clerk to Judge George M. Marovich in the Northern District of Illinois.

The authors would like to thank Joshua Sullivan and Chloe Zagrodzky, both law students at the University of Chicago's Kirkland & Ellis Corporate Lab, for their research assistance on this article.