Mensch tracht, und Gott lacht

Thursday, May 05, 2022

If you are a prosecutor or former prosecutor every wrong looks like a federal criminal offense


If you are a prosecutor or former prosecutor every wrong looks like a federal criminal offense. See eg “The leak is a corrupt act that was patently intended to influence the outcome of the Dobbs case. That makes it a criminal obstruction of that judicial proceeding.” Andrew C. McCarthy, ‘The Supreme Court’s integrity demands its leaker be prosecuted—and the decision released now,’ NY Post (May 3, 2022, 7:23 PM), <> (emphasis added); see also Alex Swoyer and Jeff Mordock, ‘Former Attorney General Bill Barr suggests Supreme Court leak is obstruction of justice,’ Washington Times (May 3, 2022), <> (“It could be obstructing the administration of justice, the due process of justice, [Barr] said. Obstruction means you’re attempting to influence, you know, through some type of wrongdoing. And I don’t think it’s a stretch.” (emphasis added)). 

The simple fact is that, at this stage, we don’t know who or what is responsible for the leak. And we don’t know the intent (if any) behind the leak. What if the day’s garbage was inadvertently put in the general trash rather than the shredder? We don’t know if the leaker had a “corrupt” motive—a very nebulous term customarily involving an undisclosed principle, or a hidden exchange for cash or other property, secreted in a closet, which the recipient fails to report on his tax return. Nothing like this appears to be at play here. 

McCarthy suggests that the wrongdoer could be prosecuted for: obstruction of justice; embezzlement; and, conspiracy to commit fraud. All three are good examples of the radical expansion of the criminal law—by the federal judiciary—in ways never intended by the legislature, in ways that threaten American free speech norms. 

Embezzlement is customarily a property crime. 

“Conspiracy” customarily requires an agreement to break the law. Is there any reason to think anyone was involved here but a single, stupid, lone actor? 

As for obstruction of justice, the leak in itself is not violence or the threat of violence. The leak did not, in any obvious, direct, or clear way, encourage violence or the threat of violence. As long as future third-parties’ committing violence have an opportunity to reflect on what they are doing, it makes little sense to ascribe their wrongdoing to the leaker. 

The leak may have been wrongful. The leaker may deserve to be fired for a breach of confidence and other norms, and, if a lawyer, the leaker may deserve to be disciplined by the bar in some fashion. But not every wrong is a crime. And not every wrong is a federal crime. That was true during Trump-Impeachment-#1, when any number of people alleged that Trump’s actions were “bribery” or “extortion.” As a matter of law, such charges were entirely unfounded. That was also true during Trump-Impeachment-#2, when any number of people alleged that Trump’s actions amounted to obstruction of justice or obstruction of Congress. Again, as a matter of law, given the evidence that was known at the time, such charges were unfounded. The same logic equally applies to the Dobbs opinion leaker. 

If normal and decent Americans want to end the criminalization of politics and the abandonment of our free speech traditions, then we have to stop criminalizing politics and political speech. But see Seth Barrett Tillman, ‘Bob Bauer’s Free Speech Problem and Ours,’ New Reform Club (July 23, 2017, 10:36 AM), <>; Seth Barrett Tillman, ‘This Is What Is Wrong With The American Judiciary,’ New Reform Club (Mar. 16, 2017, 4:23 AM), <>. 

Here and now is a good place to start. 


Seth Barrett Tillman, If you are a prosecutor or former prosecutor every wrong looks like a federal criminal offense,’ New Reform Club (May 5, 2022, 3:33 AM), <>.


Strelnikov said...

Do you have any idea how naive this makes you sound?

Skipper said...

What if the perpetrator leaked in collusion with, say, a White House or Congressional denizen or a "journalist"? Conspiracy?

Flasparty said...

Your analysis makes me think of January 6. Trying to influence the vote-counting process is not necessarily a crime. I don't think anyone ever said more than, there is fraud in the counts, please slow the process down and have election officials find the fraud.

Trump did push that harder than any candidate other than Al Gore, but I don't think he was ever asking for fraud, he was always asking election officials to find the fraud and make corrections.

Baldrickk said...

if a REAL investigation is conducted, and it's shown that a law clerk/patsy was found, the leak was seemingly planned (i.e., 'protesters' were ready and waiting outside the SC bldg), and the hysteria it would produce was the hoped-for outcome...then, throw in the known tendency for antifa-like players to be incited to commit acts of violence against those they deem their political enemies (well documented by Andy Ngo), and the fact that threats of violence against Justice Alito (and all the other 'conservative' judges I would suspect) have already been made, there could not be some sort of case made that the actions of "the leaker" and likely coconspirators, for putting Federal Judges in mortal danger? Or at the least, trying to intimidate Federal Judges. I'm guessing that's probably illegal, right?
Sheesh, J6 'visitors to the capital' have been locked up for over a year on lesser things.

Lynn said...

'Conspiracy' is a very steep hill to climb on this, particularly since you are supposed to start at 'presumed innocent.' You have to prove corrupt intent, and you have to prove the action was an attempt to affect the case. Admittedly, that doesn't seem to be any kind of barrier to the prosecution or judges in the J6 cases...

Prof CJ said...

While it may or not rise to the level of a criminal act, it is obviously unethical. If the leaker is a clerk then they should be disbarred and prohibited from participating in the legal field for life. Of course, if as seems likely, this person feels so strongly about this they may feel that the trade-off was worth it. I doubt it, however, as this current breed of activists seem to want victory without any hint of sacrifice.

L Nettles said...

Refusal or revocation of admission to the Bar of the Supreme Court of the United States would be the proper remedy

Misinforminimalism said...

FWIW, it makes more sense to me to protect, via the criminal law if necessary, draft supreme court opinions from public disclosure than 90% of the material that's designated as classified.

Athol Dickson said...

You make it sound as if prosecuting the leaker would be politically motivated. On what basis? Leaks like this threaten the rule of law for everyone, regardless of political persuasion.