By now, every lawyer has participated in a discussion about the leaker who gave Politico a copy of Justice Samuel Alito’s draft majority opinion overturning Roe v. Wade. Many feel this leaker should be indicted for a felony, disbarred, censured, or, best of all, buried alive under the amicus briefs in Dobbs v. Jackson Women’s Health Organization. Few have examined, however, the legal basis for any such prosecution.

All seem to agree that the leaking of Justice Alito’s opinion was unprecedented, but they are wrong. Leaking is more common than they suspect. In fact (as others have pointed out) in 1919, Ashton Embry, the clerk to Justice Joseph McKenna, resigned in disgrace and was later indicted for leaking the Court’s decisions prior to their public release to traders who bought and sold securities based on them. Although Embry was indicted, the charges were eventually dropped. No federal criminal statute clearly applied. 1919 was well before the passage of the federal securities laws (and thus there was no Rule 10b-5). Nor had the mail and wire fraud statutes yet been expanded to the outer limits that they reached in the 1980s. Even the phrase “insider trading” would have only drawn a blank uncomprehending stare at that time.

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