Why the Justice Department Is Unlikely to Investigate the Supreme Court Leak

What leaks have been treated as crimes in the past?

Leaks of classified information.

Federal law criminalizes the unauthorized disclosure of national security secrets. Specifically, under the Espionage Act, it is a felony to disclose, to someone not authorized to receive it, information related to the national defense that could be used to harm the United States or aid a foreign adversary. And a small handful of specific types of information — like nuclear secrets, the identities of covert agents and techniques for surveillance of intelligence communications — are separately protected by criminal laws.

But a draft opinion about abortion rights law is not a national security secret.

What about treating the leak as theft of government property?

Treating the leak of a copy of an unclassified document as theft of government property would break new ground and is barred by a written Justice Department policy. A prosecutorial manual states that “a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft.”

There are other problems. Among them, the “theft” statute is an awkward fit for the act of taking a copy of a document whose rightful owner still has full use of it, unlike stealing a tangible object. In the private sector, intellectual property laws bar such unlawful copying — but government files are not copyrighted.

Are there other novel ideas floating around?

Yes, several. All those would be novel in a leak case and carry various problems.

For example, some commentators have pointed to a law that makes it a crime to corruptly obstruct an official proceeding. But among other challenges, that route depends on understanding what the effect — and the intended effect — of the disclosure was, which is still the subject of wild speculation.

Others have pointed to the crime of exceeding one’s lawful access to a computer. But nothing in the public record suggests a hacking occurred. And just last year, the Supreme Court narrowed the scope of that law to exclude people who have lawful access to a system but download something from it for an unauthorized purpose.

Commentators have also pointed to a law that makes it a crime to unlawfully remove a judicial record. But it is not clear that law covers a situation in which someone made a copy but left the original intact; in a 2014 case in the District of Columbia, a judge said the statute criminalized only “the obliteration of information from the record of public affairs.”

“One has the sense that some people are so offended by the leak that they want it not only to be wrong, but they also want it to be illegal,” said Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists. “Lots of things are wrong that are not illegal.”