by Rafaela Prifti/
Since the first days of May, US headlines are heavily concerned with a draft opinion of the U.S. Supreme Court that was leaked to the press.
Here is a brief summary of what you need to know:
The opinion presents the legal argument for striking down the 1973 landmark decision that legalized abortion in the United States. Immediately, the media focused on the content of the opinion as well as the leak itself. An intense national debate has ensued over the identity of the leaker and whether it is illegal to leak such a document. The short answer is drafts of Supreme Court opinions are not classifies documents like national security and as such their disclosure does not automatically prompt a criminal investigation.
The other important element in considering prosecution is the question of how the document was obtained in other words whether any crimes were committed in obtaining it such as hacking into an unauthorized computer. Chief Justice John Roberts, who said the draft decision was authentic, has directed the court’s marshal to investigate the leak, calling it an “egregious breach.” It is important to note that the Supreme Court marshal is not part of the U.S. Marshals Service or the Justice Department, yet the office can make arrests and the findings of the probe can be referred to federal prosecutors.
In case the leaker is a law clerk, the range of potential sanctions include job termination and ethics violations measures. There have been a series of leaks in the 1970s which prompted the federal courts to adopt a law clerk code of conduct. The code prohibits clerks from disclosing “confidential information received in the course of official duties. It is unclear whether a law clerk had any involvement. Although leaking a draft opinion would be a violation of court confidentiality rules and could be grounds for disbarment, not every federal law clerk is a member of a bar.
If the leaker is identified as an attorney, it would fall to the bar to investigate, experts say. Washington’s Bar Association and others have rules that forbid lawyers to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Attorney disciplinary officials can investigate matters on their own or respond to complaints. For the attorney conduct provisions to apply, the leak would need to involve a licensed member of a state bar. So, whether we shall see a prosecution or sanctions resulting from a probe into the Supreme Court leak, depends on who did it.
By all accounts, the leak of a draft Supreme Court ruling is unprecedented. Although there have been instances of shared information regarding internal court dynamics or justice’s deliberations after opinions were issued such as the Bush v. Gore case or a tell-all book by a former clerk, experts do not recall any high court leak resulting in prosecution or disciplinary action.
The code prohibits clerks from disclosing “confidential information received in the course of official duties” yet it does not go as far as to make it illegal.