In much of the commentary about the leak of Justice Alito’s draft opinion in the Mississippi abortion case, I’ve heard the suggestion that a criminal prosecution is unlikely because court decisions are not akin to classified information, the unauthorized dissemination of which is a felony. This is wrong — apples and oranges.
The theft, embezzlement, or conversion to one’s own private use of government records is a crime, regardless of whether the information is classified. Such an act is, in addition, criminalized as unauthorized dissemination of classified information because its very exposure is likely to cause significant damage to national security. Nevertheless, the unauthorized dissemination of the information could also be prosecuted as embezzlement or theft of government property.
Another distinction: The leaking of classified information cannot be prosecuted as obstruction of justice. Though the leaking is condemnable, and prosecutable under other laws, intelligence operations are not judicial proceedings. To the contrary, Dobbs v. Jackson Women’s Health is a judicial proceeding. The corrupt act of leaking a draft opinion with the patent intent to intimidate the justices and influence the outcome of the proceeding is an obstruction of justice.
It makes no more sense to say the leak of the Alito draft opinion in Dobbs cannot be prosecuted because the opinion is not classified information than it would to say a leak of classified information cannot be prosecuted because it is not a judicial proceeding. Both acts involve unlawful theft of government property and are prosecutable as such; and each act can also be prosecuted under statutes that are specific to the nature of the record at issue — the laws that criminalize unauthorized disclosure of classified information if the record is classified, and the laws protecting judicial proceedings if the record is a court document.