Ex-Prosecutor Markus Funk and Judge Virginia Kendall (ND Ill.) on Possible Prosecution of S. Ct. Leaker

A new op-ed in the Wall Street Journal Wednesday (written with the help of ex-prosecutor Andrew S. Boutros), following up on their Bloomberg Law piece from May 11, lays out some possible bases for the prosecution:

Consider Section 1512 of Title 18 of the United States Code, which makes it a crime to influence an official proceeding corruptly. A federal employee seeking to influence the proceeding by, for example, generating public pressure to change or lock in a justice’s vote risks Section 1512 liability.

Further, Section 641 of the federal law makes it a crime to steal government property. True, there is a circuit split about whether intangible property, like the information in the form of a draft opinion, can be stolen. The Justice Department also disfavors criminal prosecution if the stolen property was disseminated to the public. But neither of these points, particularly when viewed in the context of the DC Circuit Court of Appeals case law most likely applicable here, forecloses a Section 641 prosecution.

An applicable misdemeanor statute, Section 1905, also prohibits the disclosure of confidential government information. The court-sensitive information federal employees like law clerks obtain is confidential and comes to them through their employment….

Finally, a prosecutor seeking to protect the integrity of the judicial process could also pursue a conspiracy charge under Section 371. That charge was brought in 1919 after Ashton Embry, a law clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company.

Funk & Kendall’s earlier piece has some more details:

Disclosure of Confidential Information

The disclosure of confidential court information might also fit well within the parameters of the oft-overlooked misdemeanor statute, 18 USC § 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(5th Cir. 1989)—US Customs Service employee running unauthorized background checks for a friend; the confidential information need not come from, nor be generated by, a private party.) …

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).

Corruptly Influencing an Official Proceeding

Enacted with the Sarbanes-Oxley Act of 2002, 18 USC § 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 (DDC 2021)) 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 USC § 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 US 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 (SDNY 2018)—intangible confidential information is “property.”)

Conspiracy to Defraud the US

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 USC § 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 his 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.”)

I’m not sure how viable these arguments are; for instance, I’m not sure that § 1905, which is limited to “information [that] concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation , or association” should be read to cover draft opinions; and the broad reading of “corruptly” in Nordean isn’t obviously correct. But I wanted to pass along the latest article, especially since its being in the Wall Street Journal is likely to make the arguments especially prominent.

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