The leak of a draft opinion overturning Roe v. Wade quickly sparked a court investigation. Which laws may have been violated, if any, remains uncertain.
But all of that furor is undermined by an inconvenient legal truth: Leaking a Supreme Court decision doesn't actually seem to be a crime—at least not by any clear and undisputed definition. "Right now, it's unclear whether the leaker broke any law at all," says Trevor Timm, a First Amendment–focused lawyer and the executive director of the Freedom of the Press Foundation.
"Legal scholarship provides little clarity regarding § 641’s interpretation; only a few scholars have even recognized § 641’s application to information," reads aabout the statute's use for prosecuting leakers, written by Jessica Lutkenhaus, an attorney focused on criminal defense at the law firm Wilmer Hale.
That ambiguity has led different federal courts to come to contradictory conclusions. A Fourth Circuit court, for instance, found in 1991 that a Department of Defense employee who left the DOD for a job at a defense contractor and took information with him was guilty of violating § 641. But a Ninth Circuit court has come to an opposite conclusion, finding in a 1959 case that "intangible" goods are not covered by § 641.
Several of the most notable leakers in history have been charged under 18 U.S.C. § 641, too, including Daniel Ellsberg, Chelsea Manning, and Edward Snowden. But the use of that law was overshadowed by their prosecution under the Espionage Act, since all three were accused of leaking classified secrets, and none set a clear precedent. Ellsberg's charges were dropped due to improper government conduct by the Nixon administration, and Snowden has yet to face trial.
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