Can someone tell me what law the leaker broke?

[maxrandb]

The draft opinion is not classified.

It doesn't have a Top Secret, Secret, Confidential or FORNO stamp on it.

It's not marked "For Official Use Only".

The Supreme Court isn't working national security issues in this case.

In a truly free society, we'd have access to every fucking working document that isn't classified.

Why would the FBI get involved in this.

[leftstreet]

1. Probably an HR violation, but law? Nah n/t

[PoliticAverse]

2. Ashton Fox Embry who leaked a Supreme Court decision was indicted...

to deprive the United States of its lawful right and duty of promulgating information in the way and at the time required by law and at departmental regulation.

See:
https://www.law.uchicago.edu/news/clerk-thief-his-life-baker-visiting-judge-tells-story-1919-supreme-court-leak
https://calapplaw.com/wp-content/uploads/2020/11/2019.02.25-Appellate-Zealots-BF-on-Selling-secrets-The-disturbing-tale-of-Supreme-Court-clerk-Ashton-Embry.pdf

Realistically, the only punishment the current leaker likely faces is being fired.

[Ocelot II]

19. The issue in that case was trading on government information for financial gain.

The current insider trading statutes didn't exist then, so they used other laws. The Dobbs leak is a whole different situation, and since we don't know who the leaker is we don't know their motive. If it was a member of Alito's staff they'll be fired but not prosecuted; but if it was a member of a liberal justice's staff, who knows?

[PoliticAverse]

20. The law he was indicted on did not involve financial gain. n/t

[uponit7771]

3. Its on shaky ground in regards to consequences, they might get fired but

https://www.wired.com/story/scotus-roe-v-wade-opinion-leak-legal-risk/

Instead, Kerr suggests that any federal prosecutor seeking to make a case against Politico's leaker might have to resort to a far shakier statute, known as 18 U.S.C. § 641. That broad statute forbids the theft or misuse of government-owned "things of value"—a broadly written law seemingly designed at a surface level to prevent embezzlement or graft by those with access to the government's property. But whether it applies to information—and what kind of information, given to whom—remains an open question in federal law, with different circuit courts fundamentally

[JohnSJ]

13. Fired? Then I hope it was Alito

[uponit7771]

15. TRUE !!

[TheRealNorth]

4. It's all meant to distract from the larger issue that we have a right-wing radical Supreme Court

[JohnSJ]

14. I don't think that will work for this

[AZ8theist]

5. The right to privacy...

....oh wait....

[Bucky]

23. But the Supreme Court should have control over their own body...

... of legal documents

[Deuxcents]

7. Some seem more interested in the leaker

Than the ramifications of taking rights away from people. Get the DOJ on it! Who did this? Guessing games. I’m sure the person(s) who leaked knew the consequences but sometimes, it doesn’t matter.. like in this case.

[onecaliberal]

8. WHY ISNT THE FBI SEARCHING FOR THE TOP SECRET DOCUMENTS A MARA LAGO?

Wray isn’t hiding his politics either. Why does it seem like the criminals are all in charge?

[SoonerPride]

9. No law was broken.

Just "tradition" which McConnell broke so who the fuck cares about that anymore?

[Ocelot II]

10. It isn't illegal; it's against the rules of the Supreme Court.

Just hours after Politico published a draft of the majority ruling written by Justice Samuel Alito calling the Roe decision "egregiously wrong from the start" and overruling that five-decade-old precedent, figures across the right issued a chorus of calls for the investigation and prosecution of the anonymous source of the "illegal" leak. CBS News went so far as to report—somewhat vaguely—that it expects an investigation “involving the FBI” into the leak's source. And Chief Justice John Roberts has opened an investigation into the disclosure.

But all of that furor is undermined by an inconvenient legal truth: Leaking a Supreme Court decision doesn't actually seem to be a crime—at least not by any clear and undisputed definition. "Right now, it's unclear whether the leaker broke any law at all," says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation. "Even the people claiming this act is beyond the pale and the FBI must investigate haven't pointed to a definitive law this leaker allegedly broke."

Timm cites a lengthy Twitter thread published late Monday by the well-known UC Berkeley legal scholar Orin Kerr, who responded to the leak Monday night by pointing out that a Supreme Court draft doesn't meet any of the obvious criteria that would make it an illegal document to hand to a journalist: Most important, it's not classified, so leaking it doesn't open the leaker to prosecution under the Espionage Act. "As far as I can tell, there is no federal criminal law that directly prohibits disclosure of a draft legal opinion," Kerr concluded.

https://www.wired.com/story/scotus-roe-v-wade-opinion-leak-legal-risk/

If the document were obtained by illegal means, as by hacking into a computer system, that might be prosecutable, but it doesn't appear that the leaking itself was illegal. So far the FBI is not involved; the court is conducting an internal investigation. The leaker, if discovered, will surely be fired, but probably not prosecuted.

[onenote]

11. Potentially, 18 USC 641

It's reach is unclear, but some courts have read it very broadly and that might be enough for an indictment.

[Ocelot II]

18. It's a real stretch.

[onenote]

30. Maybe. But see:

https://columbialawreview.org/wp-content/uploads/2016/04/Lutkenhaus-J..pdf

[Emile]

12. What's the purpose of keeping it secretly hidden?

They must have planned this to be revealed after the midterm elections. They know this could get the Democratic voters off their asses in November.

[Bucky]

25. Theoretically, proposed opinions are still in the "consideration" stage

The justices have always had the luxury of revealing only final drafts of their judgments. It's in the interest of keeping exchanges between each other candid, free flowing, and legally solid.

It's the same basis for why advice given to the president in the oval office is shielded under executive privilege. It's the same principle as why jury deliberations are behind closed doors or what the Founding Fathers arranged for writing the Constitution in 1787. You want people to give their frank and most robust opinions during the debate without an eye towards pandering to the public.

What happened here was that Alito made an extreme argument based on theocratic principles (in an initial draft then under normal circumstances would see extensive revision and moderation) and then one of the clerks or interns in the SCOTUS chambers decided he (and I'm assuming the legal is male) as a true believer wanted to put this early draft out there to rally conservatives to put pressure on the court to lean into this extremism.

[RKP5637]

16. IMO it was leaked on purpose to test the waters! n/t

[SheilaAnn]

21. My thoughts exactly...

[rso]

17. Roe

It’s not a classified document, so no laws were broken. Only alternative is administrative punishment such as firing.

[Bucky]

22. I'm certain one of the terms of employment is non-disclosal of privileged communications

It may not be a criminal act to leak Supreme Court documents, but it'll definitely get you fired.

Of course whoever did this was serving a greater cause and was certainly willing to sacrifice their future judicial career

[LiberatedUSA]

24. This right here.

+1

[maxrandb]

26. Breaking the terms of your employment

is normally not criminal, unless you work at a bank and one of your terms of employment is not to rob it.

[LetMyPeopleVote]

27. What we know about the investigation into the Supreme Court leak-What Crime is at play

There is no crime at play here

Link to tweet

https://www.cnn.com/2022/05/03/politics/supreme-court-leak-investigation/index.html?utm_term=link&utm_source=twCNNp&utm_content=2022-05-03T23%3A43%3A04&utm_medium=social

's unclear what crime could be investigated and whether the FBI and the Justice Department have the authority to look into a leak that doesn't have to do with classified or sensitive information.

Moreover, after leading politically sensitive investigations of presidential candidates and a sitting president in recent years, Justice Department and FBI officials are loath to get the bureau involved in what may end up being a political effort to try to affect the outcome of the court's final opinion in the case.

"Leaks of government information, by themselves, are not crimes," said Steve Vladeck, a CNN Supreme Court analyst who's a professor at the University of Texas School of Law. "Usually, leakers are prosecuted for leaking classified information, which this isn't, or for offenses related to how they obtained the information they leaked."

"But without one of those hooks, or some kind of financial harm to the government arising from the leak, there's no federal criminal statute that makes leaking of simply confidential governmental information unlawful," Vladeck added.

[bluestarone]

28. These IDIOTS want to go after someone, (in the SC) that leaked the TRUTH. yet

These SAME SC. judges LIED under oath without any consequences? i say BULLSHIT!

[Mr.Bill]

31. Possibly Contempt of Court?

I served on a Grand Jury and we took a lifetime oath of secrecy and if I disclosed any Jury matters or documents in my possession I could be held in Contempt of Court. The documents I has were not stamped classified or top secret, but because they were Grand Jury documents, they are covered by the oath I took. This was five years ago, and the only thing I can discuss is what we issued in our report at the end of our term.

Now this was a county Civil Grand Jury, but we worked under the supervision of a judge, just like staff at the Supreme Court and I wonder if they have similar secrecy rules. It would seem they do since this has never happened before.

[LeftInTX]

34. I assume grand juries probably have laws because ordinary citizens serve

If they didn't, can you imagine? Everyone would be talking.

The USSC are professionals etc, so there really isn't a need to create a law.

[Mr.Bill]

35. Don't take offense, but

the idea that professionals can be trusted to not leak documents to be hilarious.

[LetMyPeopleVote]

32. From Barbara McQuade

There is no crime here

Link to tweet

[brooklynite]

33. Likely theft of Government documents...

...on the assumption the leaker wasn't entitled to a copy.

Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

https://www.justice.gov/archives/jm/criminal-resource-manual-1664-protection-government-property-theft-government-information

[dsc]

37. The most likely charge you will see from this is lying to the FBI

if the person who did this lies to the FBI about having done so and gets caught. It is possible, but frankly unlikely, that a case for theft of government property could be made. I guess it is remotely possible Politico paid the person to leak but I find that very hard to believe.

[James48]

38. Take a page of opinion

Lay it down on a table in good light.
Pull out a cell phone and click a photograph.
Repeat it fii or r each page.
Return the original to its container.

It never left the room where it is stored. No theft ever occurred.

No, government documents are not copyrighted, they are the property of the public.

No crime has been committed.