Professor Laurence Tribe writes: “Right. The Justices evidently weren’t interviewed!” See <https://twitter.com/tribelaw/status/1616294504373387268>.
I responded: “It is simple. What positive rule of law forbids a Justice from releasing or authorizing the release of the purportedly ‘leaked’ materials? What federal law or enforceable rule would have been violated?”
Peter Hurley replied with: “18 USC [Section] 2071, for one. Moreover, the court has broad authority to investigate contempt or obstruction of its processes. If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview.”
Tillman: I don’t think Section 2071 works. First, Section 2071 is limited to documents which are “filed or deposited” with any clerk or public officer. Draft opinions are internally generated documents. See United States v. Sater, No. 98 Civ. 1101, 2019 WL 3288389, at *2 n.3 (E.D.N.Y. July 22, 2019) (distinguishing, in a non-Section 2071 context, internal court documents such as “early, unpublished drafts of judicial opinions” from filed documents). Second, Section 2071 is limited to “conceal[ing], remov[ing], mutilat[ing], obliterat[ing], or destroy[ing] documents—I don’t know that that language extends to releasing an electronic copy of an original. Third, violations of Section 2071 are predicated on the defendant’s having had acted “unlawfully,” which would seem require a violation of some other statute, otherwise 2071 is circular in regard to what is “unlawful.” So your (Peter Hurley’s) referencing Section 2071 as the criminal violation involved in the “leak” appears insufficient. You need to put forward some other statute that precludes a Justice from releasing or authorizing the release of a draft opinion.
Now, if the alleged “leak” or release of the draft Dobbs opinion involved some sort of bribe or a solicitation of an actual payment in money or other property, then that is an entirely different situation, and it would be a likely legal violation. But nothing like that has been alleged.
You wrote: “If a Justice undertook to influence the outcome of a proceeding by divulging information and lying about it, that is within the Court’s purview [to investigate].” Your argument is circular. If a Justice undertook to influence an opinion by writing a journal article or giving a speech on a legal issue sub judice, that would be entirely legal. If a Justice—not under oath—denied that his motivation for giving such a speech was to influence current litigation and that denial was a lie, then there is no legal violation, and there is nothing to investigate. Although lying is not a good thing, not every lie is a crime or even sufficient to justify an investigation, with its concomitant use of government time and resources. Generally, the investigatory bodies of the legal system do not put people under oath, against their will, absent a credible allegation that some crime, tort, or other cognizable legal wrong is at issue.
Again: If a Justice released or authorized the release of the draft Dobbs opinion, what federal crime is that? What cognizable legal violation would that be?
As for your position that “the court has broad authority to investigate contempt or obstruction of its processes,” I think such language usually refers to a contempt in open court and to physically impeding a court officer from carrying out extant duties. What “contempt” in open court is involved here? Which court officer and what specific duties were physically impeded by the release of the draft Dobbs opinion?
Turning arguably bad or unexpected conduct into a crime after-the-fact because no one thought to criminalize it before-the-fact violates ex post facto norms and, perhaps, the Ex Post Facto Clause. So again, I ask what is the possible federal crime which is being alleged on the facts now known to the public? And on what basis is that sufficient to investigate the Justices?
And if, after all this time, no federal crime, or tort, or other cognizable legal wrong can be credibly alleged, the better question to ask is what kind of society and legal system investigates people for behavior that is not criminal and not tortious?
Seth
Seth Barrett
Tillman, ‘Professor Laurence Tribe is Shocked! Shocked!!,’ New Reform Club (Jan.
20, 2023, 3:40 AM), <https://reformclub.blogspot.com/2023/01/professor-laurence-tribe-is-shocked.html>;
See also: 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>;
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>.
8 comments:
I don't think it should be a crime. But it should be a violation of court rules and an ethics violation.
Regardless, the justices should have been interviewed as part of this investigation because the investigation was about finding the source of the leak. What to do about the leaker is a separate question.
The Chief Justice did not want to find the leaker. Start with that and everything else makes sense.
Perhaps it's beside the point. Judges shall serve for period of good behavior per Article III, and the Congress may impeach and remove a judge for a high crime or misdemeanor. If a Justice were found to be the leaker, it could be considered an impeachable offense --but good luck convincing two-thirds of the Senate to agree to that point.
the fact that the investigation was given to someone with no experience or authority to interview the justices nor look at phone logs, smacks of aristocracy BIG TIME. we fought a war over that.
If a justice released it, then he would be violating the ethical rules of the Court, which are incredibly important for the Court to do its work.
While not a crime, the Justice would probably be subject to impeachment proceedings in Congress. It is likely he would be impeached, but not convicted. This would lead to massive calls for his or her resignation.
Something a lot of people seem to miss is that it's impossible to "obstruct" an investigation/proceeding over which one has authority. Rule of thumb: if what you're complaining about amounts to an official using their authority/discretion in a way you don't like, it isn't "obstruction". Doesn't mean it might not be some other crime (e.g., witness tampering/intimidation, bribery, perjury, or any number of other evidentiary crimes), and it may well be political suicide (e.g., firing a "special prosecutor"), but it can't be "obstruction".
Perhaps judges ought to release interim draft rulings regularly so that if they are about to make a major error they can get a correction.
I have often heard judges speak out in court about their preliminary thoughts on a ruling and ask the parties to respond.
Ex-federal appellate judicial clerk (1979-80). For what that's worth.
Is there a written policy adopted by the Court itself on confidentiality or just a well-entrenched (and desirable) tradition? Sadly, I rather think it matters. The days of "unwritten constitutions" are long past in this country.
Frankly, I think the S Ct is best done with this sad story. Further controversy and publicity
don't help either the Court's status, whatever remaining collegiality there is, or any other major value I can think of. I am a conservative but I think that interviewing (interrogating?) S Ct Justices is more downside than up. Justices are constitutional officers who run their own independent branch of government. They could have their own internal investigators interview (interrogate?) each other, but I can't think of anything more likely to destroy any remaining vestiges of collegiality, or to set a worse precedent. (Think about the House subpoena to Ginni Thomas.)
Personally, my guess is it was a liberal justice's clerk -- if caught, that's great for his/her career (although probably not as a S. Ct. advocate), if not caught, fine. Whereas if a conservative clerk did it, his/her career is over. If a conservative Justice did it (as some liberals speculate), then...whatever.
Can conservatives really see any benefit in discovering, and then punishing by a 6 to 3 vote, a (let us just speculate) highly credentialed (female?) clerk of one of the liberal Justices? I don't see how that helps the institution or even the conservative Justices.
Frankly, the CJ should be spending his time figuring out how to have his branch of government provide appropriate personal security for Justices, conservative or liberal. That is the great danger this incident exposes, not the leak.
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