Is it a Crime to Reveal a Draft of a Supreme Court Decision?

According to the Washington Post, “(t)he law that could be at issue is 18 U.S.C. 641 —which prohibits the theft or receipt of stolen government information, as well as theft of the documents. That could apply to Supreme Court documents. But the Justice Department’s criminal division has said, as a matter of policy, that it would be inappropriate to bring a prosecution under the law in the following circumstances: when the thing alleged to have been stolen was ‘intangible property, i.e., government information’; when the person ‘obtained or used the property primarily for the purpose of disseminating it to the public’; and when the property was not obtained by wiretapping, interception of correspondence or trespassing. In other words, if someone with legitimate access to the draft — such as a justice, clerk or administrative assistant — leaked the information because they thought the public should know about it, the Justice Department would not treat the leak as a crime.” In other words, while there are criminal charges available, don’t hold your breath waiting for Merrick Garland to look up from his prosecution of January 6th trespassers and charge someone with misappropriation of a draft opinion from the US Supreme Court. Particularly when his boss Joe Biden did not decry the breech of the Court’s security, but instead, took the opportunity to reiterate his support of abortion rights. “I believe that a woman’s right to choose is fundamental,” President Biden stated. “Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned…I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights.” Still, this does not mean the leaker, when caught, won’t be facing some serious consequences. According to “national security and whistleblower lawyer Bradley P. Moss, “It is certainly a fireable offense — without question.'” Thus, if the leaker is a non-attorney, he or she can expect to lose their job at the Supreme Court – and probably be hired by Planned Parenthood within the week. Unless they lie to the Court’s marshal in the course of her investigation. In that case, you can more readily expect charges to be pressed for lying to investigators. However, if the leaker turns out to be an attorney, there is a greater likelihood of severe ethical ramifications. “Washington (DC)’s bar and others have rules that forbid lawyers to ‘engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.’ The Washington bar also has a rule that says lawyers cannot ‘engage in conduct that seriously interferes with the administration of justice.’ Attorney disciplinary officials can investigate matters on their own or respond to complaints.” Even the aforementioned legal scholar Orrin Kerr believes that “(l)eaking a draft opinion would be a violation of court confidentiality rules and could result in disbarment…’This is the most egregious violation of confidentiality for a staff member or employee of the court that you can imagine,’ he said.” Further, “Michael Frisch, a former disciplinary counsel in Washington, said if the leaker is identified as an attorney, it would fall to the bar where that lawyer is a member to investigate. ‘It’s going to be a career-defining, if not career-ending moment,’ Frisch said.” With the Chief Justice of the US Supreme Court as the complainant, it will be very difficult for any attorney to escape serious disciplinary penalties for revealing Justice Alito’s draft opinion. Disbarment, or at the very least, a lengthy period of suspension from practice, is most likely. But whatever penalty is exacted – whether criminal charges, loss of employment, suspension from practice or disbarment – expect abortion supporters, and the left in general, to celebrate the leaker, and to argue that the means justifies the ends. Judge Wilson (ret.) served on the bench in NYC. Illustration: Pixabay

Quick Analysis

Part 3: AMERICA’S STRATEGIC POSTURE

We conclude our summary of the urgent recommendation of the Congressional Committee on the nation’s Strategic Posture NON-NUCLEAR CAPABILITIES The Commission recommends: The United States urgently deploy a more resilient space architecture and adopt a strategy that includes both offensive and defensive elements to ensure U.S. access to and operations in space. The United States and its Allies take steps to ensure they are at the cutting edge of emerging technologies – such as big data analytics, quantum computing, and artificial intelligence (AI) – to avoid strategic surprise and potentially enhance the U.S. strategic posture. The United States prioritize funding and accelerate long-range non-nuclear precision strike programs to meet the operational need and in greater quantities than currently planned. x America’s Strategic Posture The United States develop and field homeland IAMD that can deter and defeat coercive attacks by Russia and China, and determine the capabilities needed to stay ahead of the North Korean threat.4 The Secretary of Defense direct research, development, test and evaluation into advanced IAMD capabilities leveraging all domains, including land, sea, air, and space. These activities should focus on sensor architectures, integrated command and control, interceptors, cruise and hypersonic missile defenses, and area or point defenses. The DOD should urgently pursue deployment of any capabilities that prove feasible. The Secretary of Defense and the Military Departments transfer operations and sustainment responsibility for missile defense to the appropriate Military Departments by 1 October 2024. This will allow the Missile Defense Agency (MDA) to focus on research, development, prototyping and testing. ALLIES AND PARTNERS The Commission believes it is in the U.S. national interest to maintain, strengthen, and when appropriate, expand its network of alliances and partnerships. These relationships strengthen American security by deterring aggression regionally, before it can reach the U.S. homeland, while also enabling U.S. economic prosperity through access to international markets. Withdrawing from U.S. alliances and partnerships would directly benefit adversaries, invite aggression that the United States might later have to reverse, and ultimately decrease American, allied, and partner security and economic prosperity. Further, the Commission believes that our defense and the defense of the current international order is strengthened when Allies can directly contribute to the broader strategic posture, and the United States should seek to incorporate those contributions as much as possible. The Executive branch should recognize that any major change to U.S. strategic posture, policies, or capabilities will have great effect on Allies’ perceptions and their deterrence and assurance requirements. As a result, any changes should be predicated on meaningful consultations. RISK REDUCTION The Commission believes it is of paramount importance for the United States to work to reduce strategic risks. This involves activities and programs across the U.S. government, including in nonproliferation and arms control, as well as maintaining strong, viable, and resilient military forces. The Commission recommends that a strategy to address the two-nuclear-peer threat environment be a prerequisite for developing U.S. nuclear arms control limits for the 2027-2035 timeframe. The Commission recommends that once a strategy and its related force requirements are established, the U.S. government determine whether and how nuclear arms control limits continue to enhance U.S. security. The Commission recommends that the United States continue to explore nuclear arms control opportunities and conduct research into potential verification technologies in order to support or enable future negotiations in the U.S. national interest that seek to limit all nuclear weapon types, should the geopolitical environment change. Where formal nuclear arms control agreements are not possible, the Commission recommends pursuing nuclear risk reduction measures to increase predictability and reduce uncertainty and the chances for misperception and miscalculation. The 2009 Congressional Commission on the Strategic Posture of the United States reported that the United States was at “a moment of opportunity, . . .but also a moment of urgency” – because the security environment had improved and the threat of nuclear proliferation was the principal concern. Since 2009, the security environment has dramatically worsened and new existential threats have emerged. This Commission concludes that the United States now faces a highstakes challenge that requires urgent action. Nevertheless, the Commission has not seen the U.S. government demonstrate the urgency and creativity required to meet the challenge. Nothing other than synchronized steps taken by the Executive and Legislative Branches will craft the strategy and build the posture the nation requires. The challenges are unmistakable; the problems are urgent; the steps are needed now. Photo: An Air Force Global Strike Command unarmed Minuteman III intercontinental ballistic missile launches during a test at Vandenberg Space Force Base (DoD)