Here’s an interesting piece by two white collar criminal lawyers and a federal judge weighing in on whether the person who leaked the draft opinion overturning Roe v. Wade could be criminally prosecuted.  Assuming the leaker had authorized access to the draft opinion, it may be an uphill battle.  But this piece offers a few ideas.  Included in the possibilities would be a charge under the federal criminal statute that prohibits “corruptly influencing an official proceeding.”  This one seems like a stretch simply because I expect no matter what happens, the Justices will say nothing, and if they comment at all, it will likely be a statement that they are not influenced by the uproar occasioned by the leak.  Theft of government property and disclosure of confidential government information seem like better approaches.

The worry with a criminal investigation, however, is that it may set up a scenario where the prosecution issues a subpoena to the Politico reporter who broke the story, seeking to compel him to identify his source.  The Supreme Court in Branzburg v. Hayes refused to recognize a First Amendment privilege to protect reporters from revealing sources.  So the reporter – Josh Gerstein – may be faced with the choice of revealing his source or going to jail.  That is an untenable choice, but it could be where we’re headed.  It would be nice if this Supreme Court, while it is reversing precedent in Roe would also reverse the Branzburg precedent.