### Applicability of Criminal Statutes and “Whistleblower”

Legislation to Unauthorized Employee Disclosures

Several crim inal statutes m ay be applicable to im proper disclosure by a Justice D e p a rtm ent em ployee o f inform ation pertaining to Federal B ureau o f Investigation (F B I) u n d ercover investigations.

E m ployees o f the FB I are excepted from the general "w h istle b lo w er” provisions o f the Civil Service R eform A ct o f 1978; those provisions d o not in any event apply w h ere a disclosure is specifically prohibited by law , as is apparen tly the case here.

February 7, 1980

M EM ORANDUM O PIN IO N FO R T H E A TTO RN EY G E N E R A L

At your request, we have reviewed the criminal statutes to determine whether any might be applicable to Justice Department employees who may be found to have improperly disclosed information pertaining to the ABSCAM investigation.* W e have also reviewed the so-called “whistleblower” statutes that were designed to provide a framework for, and protection of, proper disclosures by Departmental employees. O ur quick review of these matters suggests that there are several criminal statutes that might have application here and that nothing in the “whistleblower” legislation will provide ground for justifying any leaks that may have occurred here.



### I. Criminal Statutes

A. Privacy Act

Under the Privacy Act, 5 U.S.C. §552a, a willful disclosure of information contained in a system of records by a federal officer or employee who has possession of or access to such records by virtue of his office or employment is punishable as a misdemeanor and subject to a fine of $5,000. 5 U.S.C. § 552a(i). The disclosure must be prohibited by either the Privacy A ct or a regulation promulgated thereunder in order for the statute to apply. Since the information that was disclosedwas probably contained in Federal Bureau of Investigation (FBI) investigative files, which we are informed are part of the FBI’s system of

* N o te : The ABSCAM investigation was an undercover investigation by the Federal Bureau of Investigation into allegations o f political corruption and bribery, w hich culminated in the prosecution
and conviction o f a number o f state and federal officials. See, e.g.. United States v. Myers, 692 F.2d 823, 829-30 (2d Cir. 1982). Ed.



### 383records, and since the disclosure would not be authorized under any of

the categories listed in 5 U.S.C. § 552a(b), the willful disclosure of suchinformation would be prohibited by 5 U.S.C. §552a(b) and by departmental regulation, 28 C.F.R. 16.56(8).

B. Theft o f Government Property

Under 18 U.S.C. §641, a person who knowingly converts to his own use or the use of another any record or thing of value to the UnitedStates, may be imprisoned for 10 years and /o r be fined $10,000. Recently, the Governm ent has argued in several cases that §641 applies tounauthorized disclosure of government information because such information is a “thing of value” to the United States. The Second Circuit in
United States v. Girard, 601 F.2d 69 (2d Cir. 1979), accepted the G overnm ent’s theory and held §641 applicable to the sale by a Drug Enforcement Administration (D EA ) employee of information contained in a D E A com puter which concerned the identity of possible informers and the status of certain drug investigations. The court rejected the defendants’ argument that construing §651 to apply to the theft of information would make the statute vague and overbroad and would thus infringe on First Amendment rights, stating that there was no danger of vagueness or overbreadth there because the defendants must have,know n that the disclosure of such information was prohibited by D E A regulations. However, a district court in the District of Columbia has expressly rejected the G overnm ent’s interpretation of §641 on the ground that it would infringe on the First Amendment. United States v. Hubbard, 474 F. Supp. 64, 79 (D.D.C. 1979). The Third Circuit in
United States v. DiGilio, 538 F.2d 972, 978 (3d Cir. 1976), finding that photocopies of government documents were stolen, made it clear that its decision to affirm the conviction on this ground should not be read to imply a rejection of the G overnm ent’s theory that §641 applies to theft of government information.

C. Removal o f Government Records

If original government records were removed, 18 U.S.C. §2071 would apply, which punishes such removal with 3 years in prison an d /or a $2,000 fine. If government records were photocopied on government equipment, and the photocopies were removed, 18 U.S.C. §641 may apply. United States v. DiGilio, 538 F.2d at 977.

D. Disclosure o f Confidential Business Information

U nder 18 U.S.C. § 1905, it is unlawful for a government employee to disclose information coming to him in the course of his employment which relates to the amount or source of any income, profits, losses, or expenditures of any person or firm. Violation of this statute may be penalized by a year’s imprisonment, a $1,000 fine and /o r removal from



### 384employment. Since the ABSCAM investigation may be viewed as generating information related to the source and amount of income of Members of Congress, § 1905 may apply to the disclosure of such information. We do not know w hether § 1905 would be construed that broadly because we have not found any published opinion in which a prosecution was brought under that statute.

E. Civil Rights Statutes

Under 18 U.S.C. §242, it is a crime for any person, “under color of any law, statute, ordinance, regulation, or custom,” willfully to depriveany inhabitant of the United States “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” If a person acquires information in his official capacity, and uses his official status to lend credibility to his statements when hediscloses that information, his disclosure almost certainly would constitute action “under color of law,” even if it is unauthorized.1 Depending on the particular facts, the disclosure of ABSCAM information may have violated the constitutional rights of targets of the investigation in several ways; if the disclosures were intended to violate these rights, they were willful and therefore a crime. First, by creating prejudicial publicity, the disclosures may have violated a potential defendant’s right to a fair trial. Relatedly, if the disclosures persuaded witnesses with exculpatory testimony not to come forward, they may have violated a potential defendant’s rights to compulsory process and due process of law. Second, an argument can be made that the Constitution prohibits a member of the Executive Branch, acting under color of law, from tortiously undermining the effectiveness of a Member of Congress. The speech or debate clause, the congressional privilege against civil arrest,

see Art. I, §6, cl. 1, and the Constitution’s strict limits on the circum ­ stances under which a Member can be removed, see Powellv. McCormack, 395 U.S. 486, 522-48 (1969)—as well as general principles of separation of powers—all suggest that Members of Congress havesome constitutional protection against efforts by Executive Branch officials to undermine their effectiveness as representatives. If those efforts
take the form of a common law tort committed under color of law — here, perhaps defamation or an invasion of privacy by placing a personin a “false light”—an argument can be made that the Members’ constitutional protection has been violated. Cf. Wheeldin v. Wheeler, 373 U.S. 647, 653-67 (1963) (Brennan, J., dissenting) (malicious abuse of process

1 Depending on the facts, the disclosures might possibly violate 18 U.S.C. §241, under w hich it is a crime for “tw o or more persons [to] conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the C onstitution or laws of
the United States." Section 241 reaches actions that w ere not done “under color o f law."



### 385by a federal official may be actionable as tort under federal common

law). Third, the disclosure here may have violated the Fifth Amendment’s guarantee that no person be deprived of liberty or property without due process of law. The Privacy Act and its implementing regulationsprobably give the persons they are designed to protect—here the targets about whom information was disclosed—a statutory entitlement that amounts to a “property” interest within the meaning of the Due Process Clause. Any other statute or regulation that was designed to prevent the prejudicial disclosures of information gained in a criminal investigation would create a similar property interest, w hether or not it provided criminal penalties. Reputation itself is probably not a “liberty” interest within the meaning of the Fifth Amendment’s Due Process Clause, see Paul v. Davis, 424 U.S; 693, 701-710 (1976),2 but an injury to reputation, combined with some additional significant injury, can constitute a deprivation of “ liberty” within the meaning of the clause.

See id. Here, the undermining of the ability of a target to perform hislegislative function as a Member of Congress may constitute that additional injury. In these ways, the disclosures here may have deprivedpersons of their liberty or property without due process, thus—if willful—violating 18 U.S.C. §242. We have also reviewed the obstruction of justice statutes but, giventhe facts as we presently understand them, we do not find them applicable. 18 U.S.C. § 1503 applies only when a judicial proceeding is pending, and 18 U.S.C. § 1505 applies only when an administrative proceeding is pending. The only obstruction of justice statute applicable to an investigation is 18 U.S.C. § 1510, which is much narrower inscope than §§ 1503 and 1505, punishing an endeavor by bribery, misrepresentation or intimidation to obstruct, delay or prevent the communication of information related to the violation of a criminal statute of the United States. However, if it can be shown that the purpose of thedisclosure was to terminate the investigation and that bribery, misrepresentation or intimidation was involved, it could be argued that § 1510 applies.3

2 Paul v. Davis held, in a case involving a claim under 42 U.S.C. § 1983, that reputation alone was not a “liberty" interest protected by the D ue Process Clause o f the Fourteenth Amendment. Since the Court was explicitly concerned about “ mak[ing] the Fourteenth Amendment a font o f tort law to be superimposed upon w hatever systems may already be administered by the States," 424 U.S. at 701, an argument might be made that this holding does not apply to interests protected against invasion by
federal officials.3 If the purpose of the disclosure was to intimidate M embers of Congress and impair their effectiveness, it could conceivably be argued that 18 U.S.C. § 372 applies. That statute punishes a conspiracy to prevent by force, intimidation, or threat a person holding any office, trust, or place of confidence under the United States from discharging his duties. Such an argument, how ever, may be founded on
an overbroad construction o f the term “intimidation."



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### II. Whistleblower Protection

The Civil Service Reform Act of 1978 protects from agency reprisals employees who disclose information that they “reasonably believeevidences—(i) a violation of any law, rule, or regulation, or (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law. ...” 5 U.S.C. § 2302(b)(8)(A). This section covers positions in the competitive service, career appointee positions in the Senior Executive Service, and positions in the excepted services other than those at the policy level and those specifically excluded by the President. 5 U.S.C § 2302(a)(2)(B). It applies generally to all executive agencies, but enumerates exceptions, including the FBI. FBI employees enjoy the more limited protection of 5 U.S.C. § 2303,which prohibits reprisals against FBI employees who disclose information to the Attorney General or his designee. If the Department decides to take a “personnel action” (defined broadly in 5 U.S.C. § 2302(a)(2)(A)) against an employee for “leaking” information to the press, it must determine w hether the employee is covered by the “whistleblower” protections. The head of each agency is responsible for prevention of reprisals prohibited by the Act. 5 U.S.C. § 2302(c). An employee of the FBI is not protected by the Act from reprisals for disclosure of information to the press. An employee of any other branch of the Department is protected only if: (1) He is not in a position exempted from competitive service because of its confidential,or policymaking character; (2) the disclosure was not specifically prohibited by law; and (3) the employee reasonably believed that the information evidenced violations, abuses, or dangers specified by the Act. Because it is likely that any disclosure would be violative at leastof the Privacy Act (if not other statutes), it appears to us that D epartmental employees would find no protection in these provisions.

L a r r y A . H a m m o n d Acting Assistant Attorney General Office o f Legal Counsel



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