Why the Justice Department is unlikely to investigate the Supreme Court leak

Leaks of classified information.

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

But a draft opinion on the abortion rights law is no national security secret.

Treating the leak of a copy of an unclassified document as theft of government property would be an innovation and is prohibited by written Justice Department policy. A prosecution manual states that “a government employee who, for the primary purpose of publicly exposing the material, reveals a government record to which he or she has lawfully or non-intrusively accessed would not be subject to criminal prosecution. For the flight .”

There are other issues. Among them, the status of “theft” is a clumsy adjustment for the act of taking a copy of a document whose rightful owner still has full use of it, unlike the theft of a tangible object. In the private sector, intellectual property laws prohibit such illegal copying, but government files are not copyrighted.

Yes, several. All of these would be new in a case of leakage and lead to various issues.

For example, some commentators have pointed to a law that makes it a crime to corruptly obstruct official process. But among other challenges, this path depends on understanding the effect – and intended effect – of disclosure, which is still the subject of wild speculation.

Others have pointed to the crime of exceeding one’s legal access to a computer. But nothing in public records suggests a hack took place. 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 unauthorized purposes.

Commentators have also pointed to a law that makes the unlawful removal of a criminal record a crime. But it is not clear that the law covers a situation where someone has made a copy but left the original intact; in a 2014 case in the District of Columbia, a judge said the law only criminalized “the erasure of information from the public affairs record.”

“There is a sense that some people are so offended by the leak that they not only want it to be fake, but also want it to be illegal,” said Steven Aftergood, director of the government secrecy project at the Federation of United States. American scientists. “A lot of things are bad that aren’t illegal.”

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