Affidavit could provide a mechanism to impose criminal liability on the SCOTUS leaker

by Elad Hakim

Photo: Alamy

When the draft opinion overturning the landmark case of Roe v. Wade was leaked, various legal scholars were at odds about whether the leak constituted a criminal offense.

As reported by The Washington Times:

“Some have said it could be theft of government property or obstruction of justice in trying to change the outcome of the ruling. Others have said Supreme Court documents aren’t protected by confidentiality laws like other areas of government.”

While the answer to this question remains unclear, the Supreme Court recently took another step that could potentially make it easier to impose criminal liability on the leaker(s). According to CNN, the court is asking clerks to provide cell phone records and sign affidavits.

While the request for cell phone records could face obstacles on privacy and other grounds, the affidavit is another story altogether. Pursuant to 18 U.S.C. 1001:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(2) makes any materially false, fictitious, or fraudulent statement or representation;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

Therefore, if someone, for example, makes a materially false statement, this law imposes penalties that include the possibility of imprisonment. This is a positive step in that it creates a mechanism by which to impose criminal penalties on the person or persons responsible for this egregious act.

Despite the request, is it unclear whether any clerks will voluntarily agree to sign an affidavit. While the refusal to do so would have no legal bearing, it could certainly raise some eyebrows.

After all, why would someone refuse to cooperate or help identify the person(s) responsible for one of the biggest breaches ever to impact the Supreme Court? This despicable act tarnished the sanctity of the Supreme Court.

To help restore the court’s image and rebuild the requisite level of trust, those who work within its walls should do everything possible to help locate and identify the perpetrator(s).      

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Dave Weinbaum Show, and Real America’s Voice. 

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