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), <https://nypost.com/2022/05/03/the-supreme-courts-integrity-demands-its-leaker-be-prosecuted/> (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), <https://m.washingtontimes.com/news/2022/may/3/bill-barr-former-attorney-general-suggests-supreme/> (“‘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), <http://tinyurl.com/y7ahouep>; Seth Barrett Tillman, ‘This Is What Is Wrong With The American Judiciary,’ New Reform Club (Mar. 16, 2017, 4:23 AM), <http://tinyurl.com/z4q9f8v>.
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), <https://reformclub.blogspot.com/2022/05/if-you-are-prosecutor-or-former.html>.