The recent news story about the Supreme Court’s opinion in progress will certainly polarize the already divided American public regarding abortion rights and the right to life throughout the country. However, another story less discussed is the fact that the reported leak of this kind might represent any number of serious federal crimes.
According to Fox News online and many other sources, an early draft of the Supreme Court Justices’ majority ruling in the case of Dobbs v. Jackson Women’s Health has been leaked to the public this week. The case itself, challenging the constitutionality of Mississippi’s prohibition of nearly all abortions after 15 weeks gestation, is currently under consideration by the Supreme Court.
The leak of the court’s draft of its majority opinion suggests a complete overturning of Roe v. Wade, the case decided in 1973 that found that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion and declared all state laws banning abortion in the first trimester of pregnancy unconstitutional. Assuming the leaked document is authentic, Justice’s Alito’s opinion draft denounces Roe in no uncertain terms, stating “We hold that Roe…must be overruled.”
Obviously, this is a major story about which the American people will be starkly divided. But another aspect here is the leak itself.
It cannot be overlooked that the draft of Justice Alito’s opinion in the case is just that: a draft. Once the opinion is finished, the Supreme Court publishes the opinion and it becomes law. Until then, the Justices use the drafting process to hone their ideas and attempt to come to consensus if possible. Until that process is finished, nothing is official.
According to POLITICO online, this might be the first ever instance of a leaked draft opinion of a Supreme Court case. Although there has often been speculation and rumor regarding the internal discussions and debates in cases past, a full document leak of a draft opinion at the Supreme Court level is essentially unheard of.
Could this leak be a crime?
In addition to being unprecedented, it is entirely possible that a leak like this is illegal, as well. The speculation is that the person who leaked this document is a clerk, but also could be an office administrator or contractor, or anyone. If it is determined that a government employee leaked the draft opinion criminal charges including theft, misuse of sensitive information, dissemination of government property and records and other potential charges could be brought.
In many cases like this, if no money was exchanged or true benefit received, it could be looked at as simply an ethics violation. If the purported leaker is a lawyer and member of the bar, it could result in discipline, even disbarment. However, if there was money or any valuable consideration received for this leak, it could easily be determined to be a federal criminal and be prosecuted in criminal court.
Disclosure of information, generally
There are various federal criminal laws that could have potentially been violated, depending on the factual nuisances. For example, 18 U.S. Code § 1905, makes it a federal crime for any employee of any federal agency to publish or disclose “in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties… information [that] concerns or relates to the trade secrets, processes, operations, style of work, or apparatus…”
A conviction for this federal misdemeanor would result in fines and up to a year in prison and/or removed from office or employment.
The Supreme Court Justices circulate their opinion drafts as a regular part of their deliberations when deciding cases. These drafts are protected government property. The clerks and others working inside the Supreme Court are government employees. The theft and unauthorized dissemination of these drafts could conceivably be charged as criminal activity, at minimum a federal misdemeanor.
We will continue to monitor this turn of events to see if the person who leaked the documents is revealed and to see if any charges are brought.
If you are an employee being investigated or accused of theft of protected or sensitive information of any kind, contact an experienced criminal defense attorney like Darryl A. Goldberg to protect your rights and preserve your liberty.