A new op-ed in the Wall Street Journal Wednesday (written with the help of ex-prosecutor Andrew S. Boutros), following up on their Bloomberg Law piece from May 11, lays out some possible bases for the prosecution:
Consider Section 1512 of Title 18 of the United States Code, which makes it a crime to influence an official proceeding corruptly. A federal employee seeking to influence the proceeding by, for example, generating public pressure to change or lock in a justice's vote risks Section 1512 liability.
Further, Section 641 of the federal law makes it a crime to steal government property. True, there is a circuit split about whether intangible property, like the information in the form of a draft opinion, can be stolen. The Justice Department also disfavors criminal prosecution if the stolen property was disseminated to the public. But neither of these points, particularly when viewed in the context of the D.C. Circuit Court of Appeals case law most likely applicable here, forecloses a Section 641 prosecution.
An applicable misdemeanor statute, Section 1905, also prohibits the disclosure of confidential government information. The court-sensitive information federal employees like law clerks obtain is confidential and comes to them solely through their employment….
Finally, a prosecutor seeking to protect the integrity of the judicial process could also pursue a conspiracy charge under Section 371. That charge was brought in 1919 after Ashton Embry, a law clerk to Supreme Court Justice Joseph McKenna, sent an opinion to Wall Street financiers ahead of a judgment involving a railroad company.
Funk & Kendall's earlier piece has some more details:
