The possibility that a clerk of the United States Supreme Court leaked a draft opinion to a The Politico reporter shone the spotlight on the consequences faced by clerks who betray judicial trust. Chief Justice John Roberts, who called the leak “appalling”, ordered the marshal of the court to open an investigation.
There is no doubt that the leak of internal court documents and other sensitive information, whether in the Supreme Court or in a lower court, threatens to end a promising legal career before its launch, and for good reason. . But does such a bold offense also involve criminal law?
Most observers, including some prominent law professors and other members of the legal commentary sharing their views in outlets such as The New York Times, Washington Post, Reuters, Wired, USA Today, and Politifact, felt that is probably not the case.
As three former federal prosecutors who have worked together on criminal cases for some 75 years, we offer a different perspective.
Violating the Sacred Trust
Those who have been fortunate enough to have served as court clerks, whether in federal or state courts, will at some point have been warned that releasing confidential information in court is a definite “no-no.” . As Judge Antonin Scalia would have said with characteristic candor: “If ever I find out that you have betrayed confidences about what is going on in these rooms, I will do everything in my power to ruin your career.
But however it is articulated, there is no denying the solemn expectation that what happens in the bedrooms stays in the bedrooms.
More than just standard practice (not to mention common sense), federal law clerks, and even articling students, fall under the same code of conduct covering federal judges. They must, among other things, respect the integrity of the court, refrain from political activity and observe the highest standards of confidentiality. But can a federal clerk’s unethical behavior turn 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 compelling evidence of intentional leaks will almost certainly be able to present charges to a federal grand jury.
Of course, reasonable minds may still disagree on whether prosecutorial discretion should be exercised in favor of leniency and whether, depending on the circumstances, it is best to defer to the ethical authorities of the state bar. These latter matters, however, are for judgment. What we are focusing on here, however, is what some might say is the inaccurate assertion that federal law somehow precludes prosecution.
Many of the prosecution strategies discussed by experts are, in fact, no-starts. For example, a draft decision or similar sensitive information in court is not classified, so the Espionage Act (18 USC § 798) is not available.
Additionally, clerks almost always have lawful access to drafts and similar information stored on court computer systems, making the Hacking Act (18 U.S.C. § 1030), particularly as interpreted in Van Buren v. United Statesinapplicable.
Finally, the absconding act itself does not constitute a misrepresentation (18 USC § 1001). The marshal of the court, however, could certainly ask the clerks if they engaged in leaks. If either of them is found to have falsely denied involvement, a charge under Section 1001 could be brought.
This, however, is far from the end of the conversation.
Corruptly influencing official proceedings
Enacted with the Sarbanes-Oxley Act of 2002, 18 USC § 1512(c)(2) makes it a crime to, among other things, corruptly influence “official process.” Issuance of notice is certainly part of due process and, on the evidence, it is foreseeable that a clerk might seek to bribe (i.e. wrongly, as in United States vs. Nordean) influencing a proceeding by, for example, altering the outcome of the judges’ vote or the scope of the court’s decision, through outside pressure, threats, intimidation or otherwise.
Theft of government property
The taking of judges’ confidential work product may also involve 18 USC § 641, because, broadly described, it is the theft of government “property.” Perhaps the clerk “stole” the paper (“valuable object”) on which the decision was printed. If, as is likely, the value of the thing stolen is less than $1,000, however, we are in tort territory.
The more fundamental question, characterized by a current split in the circuit, is whether confidential “information” can be considered a “thing of value”. As the United States Court of Appeals for the Second Circuit said more than 40 years ago, the government has a “property right to some of its private records which it can protect by law as a thing of value”.
It’s hard to disagree. After all, federal courts adjudicate matters of enormous economic, social, and legal importance (and value). Prior notification of a court decision creating or removing a claimed right or privilege (or ruling in favor of one litigant or another in a commercial dispute) would seem particularly “valuable”. (See also United States vs. Middendorf — intangible confidential information is “property”. »
Disclosure of Confidential Information
Disclosure of confidential forensic information might also fit well within the parameters of the oft-overlooked tort law, 18 USC § 1905 (prohibiting “disclosure of confidential information generally”). Court officers are federal civil servants, the information they obtain is “confidential”, it reaches them “during [their] employment”, and the disclosure is not “authorized by law”. (United States vs. Wallington—WE Customs service employee perform unauthorized background checks for a friend; Confidential Information need not originate from, or be generated by, a private party.)
While it is true that the only prosecutions under Section 1905 have thus far been brought against employees of the executive branch, this part of legal historiography offers little protection to employees of the judiciary or legislature. 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 decision, the outcome of a case, or similar information may be considered to “regard” or “relate” to the judicial “process”, “operation” or ” working style”. “, at least the prosecutor will support it (although there is some leeway for the defense attorney to argue otherwise).
Conspiracy to defraud the United States
In 1919, Ashton Embry, clerk to Supreme Court Justice Joseph McKenna, sent a notice to Wall Street financiers ahead of a judgment involving a railroad company. He was charged with violating 18 USC § 371. The prosecution’s theory was that by releasing the notice earlier, the clerk and his “co-conspirators deprived the court of the right to announce its decisions to the court.” ‘usual time’.
In short, early release upset established court custom. The district court denied Embry’s motion to dismiss, but the prosecutor later, for undisclosed reasons, dismissed the case. Although the case has not been completed, Embry’s unfinished prosecution is interesting if for no other reason than it belies recent claims that clerk leaks are terra incognita. (Middendorf – believing that the intention to defraud by sharing intangible information may be “incidental to another main motivation.)
Widespread claims that criminally prosecuting a cleric responsible for the leak would require a prosecutor to ‘invent creative theories’, that it would be a ‘stretch’ for the Justice Department ‘even to investigate the case’ and that there is “no criminal law” that makes leaking draft opinions “unlawful” are irrelevant. Where the facts require it, the existing legislative framework will not frustrate a prosecutor who is dedicated to protecting the integrity of the judicial process.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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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 chairman of the firm’s White Collar & Investigations practice. He clerked for Judge Morris S. Arnold (United States Court of Appeals for the Eighth Circuit) and Judge Catherine D. Perry (Eastern District of Missouri).
Andrew S. Boutros, a former assistant U.S. attorney in Chicago, is a partner at Dechert LLP and serves as regional chair of the firm’s white-collar practice. He is also a lecturer at the University of Chicago Law School and served as clerk for Judge Eugene E. Siler Jr. of the United States Court of Appeals for the Sixth Circuit.
Judge Virginia M. Kendall is a judge of the United States District Court for the Northern District of Illinois in Chicago. She trains court clerks on ethics and served for six years on the United States Judicial Conference’s Judicial Codes of Conduct Committee. She is also a lecturer at the University of Chicago Law School and served as 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 Kirkland & Ellis Corporate Lab at the University of Chicago, for their research assistance on this article.