February 3, 2023

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Prosecute the Supreme Court Leakers

2 min read

The leak of a draft Supreme Court opinion to a Politico reporter in May was a historic betrayal of the bench. Investigators reportedly are taking steps to obtain phone records and affidavits from the justices’ law clerks. If the leaker turns out to be a law clerk, he or she will be so ethically compromised that a career in the law will almost certainly be out of reach. Most commentators agree that federal law doesn’t criminalize such court leaks. We see things differently.

Working in the chambers of a federal judge—whether on the Supreme Court or elsewhere—is for good reason considered the best first job a law school graduate can land. Thousands of highly qualified law students typically apply for a single slot. The job affords entrance into an elite circle, and promises to open professional doors and provide credibility during the new attorney’s career. But this honor comes with the solemn institutional expectation that what happens in chambers stays in chambers. Justice

Antonin Scalia

had a reputation for not mincing words on the subject. He warned incoming classes of law clerks that he would do “everything in [his] power” to “ruin” the career of any law clerk who betrayed his confidences.

Of course, not all leaks are the same. The criminal prosecution of a law clerk who leaks confidential information should be reserved for the most egregious conduct. Inadvertently letting such information slip during a conversation with a close confidant is quite different from surreptitiously sending a draft ruling to a reporter. But recognizing the reality that prosecutors must exercise judgment is a far cry from the unqualified assertions that federal law offers no path to prosecution.

Prosecutors could use several federal statutes to open a grand jury investigation, subpoena testimony and records, and otherwise tap into uniquely powerful federal resources to track down the source of the leak. These…

2022-06-01 13:30:00

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