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Subject: U.S. Courts in District Consider Anti-Leak Rule;Proposal by Judicial Council
Date: Thu, 26 Nov 92 10:44:02 EST
Message-ID: <31.1992Nov26.104402@AmeriCast.com>
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U.S. Courts in District Consider Anti-Leak Rule;Proposal by Judi-
cial Council Came After Clarence Thomas Opinion Was Given to
Media< By Michael York= Washington Post Staff Writer=

A group of federal judges is considering a rule that would pro-
vide for punishment, including criminal prosecution, for court-
house employees who disclose confidential case information.

The proposed rule was issued by the D.C. Judicial Council, a 13-
member panel of judges from the federal trial and appeals courts
for the District. It is the Judicial Council's first endeavor at
rule making, and it is expected to be the main agenda item when
it meets Dec. 10.

Some judges dubbed the proposal the Thomas Rule after it was dis-
closed last month. The idea for the rule arose from a courthouse
uproar last year over the leak of an appeals opinion written by
then-U.S. Circuit Judge Clarence Thomas while his Supreme Court
nomination was pending.

The proposal states that "all officers and employees of the
courts . . . have a duty to keep certain information learned in
the course of that individual's employment confidential." Penal-
ties for a "willfull violation" of the rule would include suspen-
sion, disbarment, dismissal and criminal prosecution.

U.S. District Judge Stanley Sporkin, who wrote the rule with U.S.
Circuit Judge A. Raymond Randolph, said yesterday that the propo-
sal is "a harmless rule . . . it says the obvious."

Sporkin said the purpose of the rule "is not to gag anybody, nor
is it to prevent whistleblowing."

The rule would apply to past and present employees but not apply
to judges, Sporkin noted, and it would not prevent any court em-
ployee from discussing anything contained in the court's public
record. In addition, the rule would allow former employees to
disclose otherwise confidential material after 10 years.

Randolph declined to comment yesterday.

In interviews with a dozen district and circuit judges, all of
whom asked not to be identified, it appears that the rule may be
headed for trouble, at least in its current form.

Four of the judges complained about the 10-year provision, argu-
ing that all internal memoranda and draft opinions should remain
secret indefinitely. Others said the rule should be rewritten
with more precise language because it could be used to end a
young lawyer's career.

Still others, most of those interviewed, said they thought the
rule might be unnecessary. Judges traditionally have demanded
that their clerks and other court employees keep their confi-
dences, the judges said, and they almost always do.

Jane Kirtley, executive director of the Reporters Committee for
Freedom of the Press, is not so sure the rule would be harmless.
Kirtley said in an interview that she sees the rule as "serious .
. . every time you put a principle into concrete, you create an
environment of fear and distrust." Kirtley, whose organization
has filed comments with the council objecting to the proposed
rule, said it "is an unfortunate move on the part of the judici-
ary that shows an obsession with leaks we have seen on the part
of the executive, which, frankly I don't think the judiciary
needs to have."

Not all journalists agree, however. Scott Armstrong, who was co-
author of "The Brethren" with Washington Post assistant managing
editor Bob Woodward, said he doubted such a rule would have hin-
dered his work on the book about the Supreme Court.

"I don't think it would have had any effect," Armstrong said.
"Courts are generally extraordinarily discreet places, and it is
rare that you have opinion leaked or a process described."

That happens, he said, "when you have a deeply felt need, for
public policy reasons, that something should be exposed."

The leak of the Thomas opinion, Armstrong said, was just such an
occasion. The incident involved the disclosure of a draft opinion
in a case involving a sex-based preference policy of the Federal
Communications Commission. The appeals court ruled against the
preference.<02:24 11-26C9999-----

Copyright 1992, The Washington Post.  This story is from the
Washington Post's Capitol Edition On-Line and is not to be ar-
chived or redistributed.

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