"The Possibility of Prosecuting Federal Court Leakers—Update & Rejoinder"

Former prosecutors Markus Funk and Andrew S. Boutros, and Judge Virginia Kendall, delve further into this fascinating question.

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 mean he is totally on board with them, but for today we will leave them to stand as they are.)

What Information Is Protected (18 U.S.C. § 1905)?

To be sure, Eugene is absolutely correct about Section 1905: there is ample room for motions practice to be waged over whether the misdemeanor crime codified in 18 U.S.C. § 1905 covers draft opinions of the federal courts. After all, Section 1905 does not criminalize all disclosures (1) made by federal employees who (2) without authorization (3) disclose information (4) they learned about through their employment. If Section 1905 were that broad, many law clerks might need defense counsel.

Instead, what must be protected are discrete categories of confidential information, namely, information relating to or concerning, in relevant part, "processes, operations, style of work, or apparatus." (Emphasis added). And, although Section 1905 does not specify an express state of mind for the crime to be committed, the courts have stepped in and explained that "the appropriate culpability must at least include knowledge that the information is confidential in the sense that its disclosure is forbidden by agency official policy (or by regulation or law)." (United States v. Wallington, 5th Cir. 1989) (emphasis in original).

Thus, the prosecutor's argument would go something like this: Based on the text of Section 1905, a draft Supreme Court opinion—along with the ever-critical fact of a 5-to-4 split ruling, the outcome of a case, and similar information—"concerns" or "relates to" the judicial "process," "operation," or "style of work" of the Court or the individual (or collective) Justices. After all, the leaker's unauthorized actions revealed the Court's internal deliberative processes; those actions exposed the inner sanctum of the Court's operations. They also revealed the ruling's draft language, even though the language and thinking may have been far from final and indeed may still very much be iterative in nature.

Consider also that, per Black's Law Dictionary, "processes" and "operations" mean "a method, mode, or operation, whereby a result or effect is produced; normal or actual course of procedure." To be sure, a skilled defense attorney would—and, frankly, must—argue that a one-time surreptitious release of a draft opinion is not the same as sharing information concerning the Court's methods, modes, or operations (the latter of which defense counsel could argue sound in ongoing/regular government routines or practices). But that same defense counsel also would need to contend with the fact that the leaker not only revealed the draft opinion (in its full form), but the vote of each Justice as well as the final vote count.

Consider further that Section 1905 is not just limited to information of private parties given to the government; it applies equally to government-generated confidential information. See United States v. Wallington. And, in the end, the real question is whether Section 1905's text ab initio renders the more pro-prosecution perspective invalid. There may be room to debate the issue, but we still think it is an overstatement for the pundits to proclaim that Section 1905 could never apply.

Do We Need the "Leaker Accountability Act of 2022" to Come to Section 1905's Rescue?

The proposed "Leaker Accountability Act" seeks to head this just-discussed "processes, operations, style of work, or apparatus" definitional issue off at the legislative pass. Other than being a felony by providing for five years in prison, rather than Section 1905's one-year-or-less punishment, the Leaker Accountability Act is pretty clearly modeled on Section 1905. It would prohibit Supreme Court employees from sharing "confidential information," and then provides an intentionally broad definition of the term to include verbal court-related communications, draft opinions, non-public personal information about the Justices, information designated confidential by the Chief Justice, among other categories.

Although this proposed law would remove the above-referenced textual ambiguity by clearly criminalizing even a one-time incident of leaking, it is puzzling that its drafters would limit its application to only "officer[s] or employee[s] of the Supreme Court." Does the leaking of court-sensitive federal appellate or district court information, for example, not also pose significant risks to the integrity and operation of the judiciary? Put differently, if Section 1905 is, in fact, in need of such clarification, is there really a good reason to limit its applicability only to the High Court? We think not.

In any event, the draft legislation shows that even members of Congress are turning first to Section 1905 when assessing whether the Supreme Court leaker's actions amounted to a crime. The proposed language would resolve the so-called ambiguity question definitively and affirmatively.

What Is "Corruptly" for Section 1512 Purposes?

We next turn to a topic on which we feel that, despite Eugene's potential concerns, our position is on firm ground, namely, the definition of "corruptly" in 18 U.S.C. § 1512. Section 1512, you will recall, makes it a crime to corruptly influence, or try to influence, an official proceeding. Our view is that a federal employee seeking to "influence" the proceeding by, for example, generating public pressure to change or lock in a justice's vote, might in so doing have crossed into Section 1512 territory.

Eugene posits that a "broad reading of 'corruptly' in Nordean isn't obviously correct." But, for a statute such as 18 U.S.C. § 1512(c)(2), which requires a prosecutor to prove that the leaker acted "corruptly," courts (including the Supreme Court) have held that "corruptly," as used in the federal obstruction statutes, means to act "wrongfully" through either one's "means or his purpose." Id. (citing United States v. Sandlin, __ F. Supp. 3d __, 2021 WL 5865006, at *11 (D.D.C. Dec. 10, 2021)). Indeed, in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), and while addressing the meaning of "corruptly" in Section 1512(b), the Supreme Court held that "corrupt" and "corruptly" were associated with, inter alia, "wrongful" behavior. Id. at 705 (citing dictionaries).

In that context, the Supreme Court suggested that "corruptly" meant "wrongdoing." Id. at 705-06 ("consciousness of wrongdoing" joins the meanings of "knowingly" and "corruptly" together). Further, at least two district courts sitting in D.C. last year agreed that reading "corruptly" to mean "wrongfully" resolves many potential textual ambiguities because "wrongfully provides another well-settled meaning applicable here: 'contrary to law, statute, or established rule.'" Sandlin, at *13 (citing Wrongful, def. 3(a), Oxford English Dictionary (2d ed. 1989)); see also United States v. Nordean, D.D.C. 2021.

The upshot is that, provided the facts support the argument that the leaker was trying to use improper ("wrongful") means to put pressure on a Justice to change or lock in his/her vote ("influence the proceedings"), we think sufficient predication exists for a federal prosecutor to investigate whether the leaker's actions could have violated Section 1512.

Parting Thoughts

We wish to stress (again) that our point has never been that a jury would necessarily convict the leaker, or that a federal prosecutor should bring charges in the first place. Instead, we are pushing against the prevailing narrative that criminally prosecuting a law clerk leaker is an out-of-the-gate non-starter.

That some (and, perhaps many) may harbor doubts about how the possible facts and prosecutorial approaches might interact with statutory language does not defeat our purpose. Indeed, as those who spend time in the courtroom know, there is virtually nothing a lawyer can say in court that will not trigger lengthy briefings and argument to the contrary by an opposing party. In short, we continue to believe that the legal commentariat's categorical claims that the leaker need never fear a federal criminal investigation or charges fall short of the mark.