Abortion Opinion Leak May Be a Federal Crime

The US Supreme Court in Washington, DC, on December 4, 2021. (Photo by Daniel SLIM / AFP) (Photo by DANIEL SLIM/AFP via Getty Images)
DANIEL SLIM/AFP via Getty Images

The unauthorized leak of a draft Supreme Court opinion that would overturn Roe v. Wade may have violated the U.S. criminal code.

The removal and use of Supreme Court documents without authorization likely runs afoul of 18 U.S. Code § 641, which provides criminal penalties for anyone who “embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record…or thing of value of the United States or of any department or agency thereof.”

Government employees have been convicted under this statute for photocopying and disseminating confidential documents without authorization. In United States v. DiGilio, defendants were convicted of violating the statute for photocopying documents in an FBI file. They appealed the conviction, arguing that because they only removed copies of the documents and never deprived the FBI of their use, they did not break the law. The Federal Court of Appeals for the Third Circuit upheld the conviction, holding that a “duplicate copy is a record for the purposes of the statute, and duplicate copies belonging to the government were stolen.”

Similarly, 18 U.S. Code § 2071 provides criminal penalties for “[w]hoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States.”

Both statutes are cited in the Code of Conduct for Judicial Employees, leaving no doubt they apply to employees of the judicial branch.


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