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Leaker of Alito’s draft opinion could face criminal prosecution


Whoever leaked Justice Samuel Alito’s draft opinion in a crucial abortion-rights case violated a key tenet of the Supreme Court — and might even have committed a crime, legal experts said Tuesday.

“It is a core, central principle of working there to keep everything confidential,” said Washington, DC, lawyer Bill Burck, a former federal prosecutor who clerked for former Justice Anthony Kennedy..

If the leaker is a clerk — or even one of the court’s nine justices — “it’s hard to see how a crime was committed” because the document isn’t classified and they’d have a right to possess it, Burck said.

But amid the investigation ordered by Chief Justice John Roberts, others said the unprecedented disclosure of Alito’s 98-page work in progress may have run afoul of a federal law that prohibits the theft of public money, property or records.

“Somebody took something that belongs to the Supreme Court and gave it to someone else without authorization. That seems problematic,” said American University law professor Stephen Wermiel, an expert on the high court.

The statute — Title 18, Section 641 of the US Code — makes it illegal to swipe “any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof.”

Dozens of protesters begin to gather for a rally to defend the right to abortion at Centennial Olympic Park.
AP/ Curtis Compton

If the value is less than $1,000, the maximum sentence is one year in prison but if it’s more than that, the punishment tops out at 10 years.

South Texas College of Law professor Josh Blackman — who wrote Monday night that “Heads must roll” over the leak — called Alito’s draft “priceless” but both he and Wermiel said they didn’t know how to affix a dollar value to it.

University of California, Berkeley law professor Orrin Kerr tweeted a link to a 2016 article in the Columbia Law Review titled “Prosecuting Leakers the Easy Way” that cited Section 641.

Document leak
Whoever is behind the leak can be punished for the act.
JOHN NACION/startraksphoto.com

Kerr also cited a 1995 ruling from the US Court of Appeals for the District of Columbia Circuit which “held that information can be a thing of value” under the statute.

“The answer may not be clear, but a deep dive into that caselaw (esp in DC, although maybe also wherever the reporters were) is the place to start,” he wrote.

George Washington University law professor Jonathan Turley called the leak “such a serious and malicious act that it could warrant prosecution” but said he was “leery of stretching the criminal code” to build a case.

“I believe that the strongest case for prosecution would likely be…for false statements to a federal investigator,” he said.

US Supreme court
It’s concerning the document that belongs to the Supreme Court was placed in the hands of someone else without authorization.
Reuters/ Michael A. McCoy

“I am assuming investigators are likely to speak to most of the relatively small group of people with access to the draft opinion, including the culprit. If [the probe] later finds incriminating evidence, a denial on first contact can be used as the basis for a charge.”

Alito’s draft was distributed to all of his fellow justices, whose clerks sign pledges of confidentiality as part of their one-year jobs, The Associated Press said.

About 70 people might ordinarily have seen Alito’s draft, AP said.

UCLA law professor Adam Winkler said that although leaking the draft “would not violate any law in and of itself,” the way it was obtained may have been illegal.

“It could have been hacked,” he said.

“If that’s how it came out, that is a federal crime.”

Alito’s draft was distributed to all of his fellow justices.
Reuters/ Jeenah Moon

The electronic version of the draft posted online by Politico appears to show staple marks in the upper left-hand corners of the pages, but Winkler noted that many photocopiers store images in memory banks from which they can be retrieved and printed out.

Winkler said it’s also possible that a cleaner with access to the justices’ chambers could have lifted the draft off a desk.

“We need to know how it occurred to know whether there’s a crime,” he said.

Burck, the former prosecutor, also raised the possibility that someone was paid to leak the draft, adding: “That would be a crime — that would be bribery.”

But even if no laws were broken, whoever is behind the leak should be punished to the fullest extent possible, including by impeachment if a justice was involved, he said.

“When you start leaking out internal deliberations, you are actually exposing the thinking process,” he said.

“That can lead to intimidation and retribution, that can lead to the changing of decisions.”

He added: “Whoever did it, the purpose was to intimidate, whether it was on the liberal side…or on the conservative side.”



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