Legal experts say SCOTUS leaker could face multiple charges

Politico caused an outcry earlier this month when it revealed a leaked draft opinion suggesting that the Supreme Court is about to overturn Roe v. Wade.

While it is still not clear who leaked the document, a contributor for the American Bar Association’s official publication recently argued that he or she could be facing criminal charges.  

Multiple statues may have been broken

That was the case Debra Cassens Weiss put forward in an article published last week by ABA Journal. She began by noting that the Espionage Act wouldn’t come into play as the draft opinion was not a classified document.

However, she cited a Bloomberg Law article that suggested that if the leaker obtained the material via computer hacking then he or she could be prosecuted under Section 1030 of Title 18 of the federal criminal code.

What’s more, Section 1001 of Title 18 would open another prosecutorial avenue if the leaker lies about his or her involvement to investigators.

Weiss noted that the three former federal prosecutors who authored the Bloomberg Law piece said Title 18’s Section 1512(c)(2) could provide more grounds for action.

It prohibits anyone from corruptly influencing an official proceeding by seeking to change justices’ votes and was referenced by former U.S. Attorney General William Barr during an interview with journalist Megyn Kelly.

“Obstruction means you’re attempting to influence through some kind of wrongdoing,” Barr said when he appeared on “The Megyn Kelly Show.”

Century-old case offers precedent

Another prosecutorial option would involve charging the leaker with conspiracy to defraud the United States under Section 371.

This would require government lawyers to argue that the leaker prevented the Court from releasing the opinion at a time of its choosing.

Weiss referenced a Washington Post article that pointed to the prosecution of a Supreme Court clerk who shared opinion on railroad properties with financiers prior to it being released.

This legal theory was used because insider trading was not a crime at the time that the leak occurred. However, the piece pointed out that prosecutors ultimately dropped the charges.

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