Applicability of Criminal Statutes and "Whistleblower" Legislation to Unauthorized Employee Disclosures

Opinion

Applicability of Criminal Statutes and “Whistleblower”

Legislation to Unauthorized Employee Disclosures

S ev eral crim inal sta tu tes m ay be app licab le to im p ro p e r d isc lo su re by a Ju stice D e p a rt­ m ent em p lo y ee o f in fo rm atio n p ertain in g to F e d e ra l B ureau o f In v estig atio n (F B I) u n d e rc o v e r in v estigations. E m p lo y ees o f th e F B I are ex cep ted from th e g en eral " w h is tle b lo w e r” p ro v isio n s o f the C ivil S erv ice R efo rm A c t o f 1978; th o se p ro v isio n s d o n ot in any e v e n t a p p ly w h e re a d isclo su re is sp ecifically p ro h ib ite d by law , as is a p p a re n tly th e case here.

F ebruary 7, 1980

M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L

A t your request, w e have reviewed the criminal statutes to determ ine w hether any might be applicable to Justice D epartm ent employees who may be found to have im properly disclosed information pertaining to the ABSCAM investigation.* W e have also review ed the so-called “w histleblow er” statutes that w ere designed to provide a fram ework for, and protection of, proper disclosures by D epartm ental employees. O ur quick review o f these m atters suggests that there are several criminal statutes that might have application here and that nothing in the “w histleblow er” legislation will provide ground for justifying any leaks that may have occurred here.

I. Criminal Statutes

A. Privacy Act

Under the Privacy A ct, 5 U.S.C. §552a, a willful disclosure of information contained in a system o f records by a federal officer or employee w ho has possession o f or access to such records by virtue o f his office or em ploym ent is punishable as a misdem eanor and subject to a fine o f $5,000. 5 U.S.C. § 552a(i). T he disclosure must be prohibited by either the Privacy A ct or a regulation prom ulgated thereunder in order for the statute to apply. Since the information that was disclosed was probably contained in Federal Bureau o f Investigation (FB I) inves­ tigative files, w hich we are inform ed are part o f the F B I’s system o f

* N o t e : T he A B SC A M investigation was an undercover investigation by the Federal Bureau o f Investigation into allegations o f political corruption and bribery, w hich culm inated in the prosecution and conviction o f a num ber o f state and federal officials. See, e.g.. United States v. Myers, 692 F.2d 823, 829-30 (2d Cir. 1982). Ed.

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records, and since the disclosure w ould not be authorized under any of the categories listed in 5 U.S.C. § 552a(b), the willful disclosure o f such inform ation would be prohibited by 5 U.S.C. §552a(b) and by depart­ mental regulation, 28 C .F.R . 16.56(8). B. Theft o f Government Property

U nder 18 U.S.C. §641, a person w ho knowingly converts to his own use or the use o f another any record o r thing of value to the United States, may be imprisoned for 10 years a n d /o r be fined $10,000. R e­ cently, the G overnm ent has argued in several cases that §641 applies to unauthorized disclosure o f governm ent information because such infor­ mation is a “thing o f value” to the United States. T he Second Circuit in U nited 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 D rug Enforcem ent Adm inistration (D E A ) employee o f information contained in a D E A com puter w hich concerned the identity o f possible informers and the status o f certain drug investigations. T he court rejected the defendants’ argum ent that construing §651 to apply to the theft of information would make the statute vague and overbroad and would thus infringe on First A m endm ent rights, stating that there was no danger o f vagueness o r overbreadth there because the defendants must have,know n that the disclosure o f such information was prohibited by D E A regulations. H ow ever, a district court in the D istrict o f Columbia has expressly rejected the G overnm ent’s interpretation o f §641 on the ground that it would infringe on the First Am endm ent. United States v. H ubbard, 474 F. Supp. 64, 79 (D .D .C . 1979). T he T hird Circuit in United States v. DiGilio, 538 F.2d 972, 978 (3d Cir. 1976), finding that photocopies o f governm ent docum ents w ere stolen, made it clear that its decision to affirm the conviction on this ground should not be read to imply a rejection o f the G overnm ent’s theory that §641 applies to theft o f governm ent information. C. R em oval o f Government Records

If original governm ent records w ere rem oved, 18 U.S.C. §2071 w ould apply, w hich punishes such removal with 3 years in prison a n d / o r a $2,000 fine. If governm ent records w ere photocopied on govern­ ment equipment, and the photocopies w ere 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 governm ent em ployee to disclose inform ation com ing to him in the course o f his em ploym ent w hich relates to the am ount or source o f any income, profits, losses, or expenditures o f any person o r firm. Violation o f this statute may be penalized by a year’s imprisonment, a $1,000 fine a n d /o r rem oval from

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employment. Since the ABSCAM investigation may be viewed as gen­ erating information related to the source and am ount o f income o f Members o f Congress, § 1905 may apply to the disclosure o f such information. W e do not know w hether § 1905 would be construed that broadly because we have not found any published opinion in w hich a prosecution was brought under that statute. E. Civil Rights Statutes

U nder 18 U.S.C. §242, it is a crim e for any person, “ under color of any law, statute, ordinance, regulation, or custom ,” willfully to deprive any inhabitant o f the United States “o f any rights, privileges, o r immu­ nities secured or protected by the Constitution or laws o f the United States.” If a person acquires information in his official capacity, and uses his official status to lend credibility to his statem ents when he discloses that information, his disclosure almost certainly would consti­ tute action “under color o f law ,” even if it is unauthorized.1 D epending on the particular facts, the disclosure o f ABSCAM information may have violated the constitutional rights o f targets of the investigation in several ways; if the disclosures w ere 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 w ith exculpatory testimony not to come forward, they may have violated a potential defendant’s rights to compulsory process and due process o f law.

Second, an argum ent can be made that the C onstitution prohibits a member of the Executive Branch, acting under color o f law, from tortiously undermining the effectiveness o f a M ember o f Congress. T he 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 M ember can be rem oved, see Powell v. McCormack, 395 U.S. 486, 522-48 (1969)—as well as general principles of separation o f pow ers—all suggest that M embers o f Congress have some constitutional protection against efforts by Executive Branch offi­ cials to undermine their effectiveness as representatives. If those efforts take the form o f a com m on law tort com m itted under color o f law — here, perhaps defamation or an invasion o f privacy by placing a person in a “ false light” —an argum ent can be made that the M em bers’ consti­ tutional protection has been violated. Cf. Wheeldin v. Wheeler, 373 U.S. 647, 653-67 (1963) (Brennan, J., dissenting) (malicious abuse o f process

1 D epending on the facts, the disclosures m ight possibly violate 18 U .S.C. §241, under w hich it is a crim e for “ tw o o r m ore persons [to] conspire to injure, oppress, threaten, o r intim idate any citizen in the free exercise o r enjoym ent o f any right o r privilege secured to him by the C onstitution o r law s o f the United States." Section 241 reaches actions that w ere not done “ under c olor o f law ."

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by a federal official may be actionable as tort under federal common law).

T hird, the disclosure here may have violated the Fifth A m endm ent’s guarantee that no person be deprived o f liberty or property w ithout due process o f law. T he Privacy A ct and its im plementing regulations probably give the persons they are designed to protect—here the tar­ gets about whom inform ation was disclosed—a statutory entitlem ent that am ounts to a “property” interest within the meaning of the D ue Process Clause. A ny other statute o r regulation that was designed to prevent the prejudicial disclosures o f information gained in a criminal investigation would create a similar property interest, w hether or not it provided criminal penalties. R eputation itself is probably not a “liberty” interest within the meaning o f the Fifth A m endm ent’s D ue Process Clause, see Paul v. Davis, 424 U.S; 693, 701-710 (1976),2 but an injury to reputation, com bined w ith some additional significant injury, can constitute a deprivation o f “ liberty” within the meaning o f the clause. See id. Here, the undermining o f the ability o f a target to perform his legislative function as a M em ber o f C ongress may constitute that addi­ tional injury. In these ways, the disclosures here may have deprived persons o f their liberty or property w ithout due process, thus—if will­ ful—violating 18 U.S.C. §242.

We have also review ed the obstruction o f justice statutes but, given the facts as we presently understand them, w e do not find them appli­ cable. 18 U.S.C. § 1503 applies only w hen a judicial proceeding is pending, and 18 U.S.C. § 1505 applies only when an administrative proceeding is pending. T he only obstruction o f justice statute applicable to an investigation is 18 U.S.C. § 1510, w hich is m uch narrow er in scope than §§ 1503 and 1505, punishing an endeavor by bribery, misrep­ resentation o r intimidation to obstruct, delay or prevent the com m uni­ cation o f inform ation related to the violation o f a criminal statute o f the United States. H ow ever, if it can be shown that the purpose o f the disclosure was to term inate the investigation and that bribery, m isrepre­ sentation 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 C lause o f the Fourteenth A m endm ent. Since the C ourt w as explicitly concerned about “ mak[ing] the F o u rteen th A m endm ent a font o f tort law to be superim posed upon w h atev er systems may already be adm inistered by the States," 424 U.S. at 701, an argum ent m ight be made that this holding does not apply to interests protected against invasion by federal officials.

3 If th e purpose o f the disclosure was to intim idate M em bers o f C ongress and im pair their effective­ ness, it could conceivably be argued that 18 U.S.C. § 372 applies. T h at statute punishes a conspiracy to prevent by force, intim idation, o r th reat a person holding any office, trust, o r place of confidence under the U nited States from discharging his duties. Such an argum ent, how ever, may be founded on an ov erb ro ad construction o f the term “ intim idation."

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II. Whistleblower Protection

T he Civil Service Reform Act o f 1978 protects from agency reprisals employees w ho disclose information that they “ reasonably believe evidences—(i) a violation of any law, rule, or regulation, or (ii) misman­ agement, 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 com petitive 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 enum erates exceptions, including the FBI. FBI employees enjoy the m ore limited protection o f 5 U.S.C. § 2303, which prohibits reprisals against FBI employees w ho disclose inform a­ tion to the A ttorney G eneral or his designee.

If the D epartm ent decides to take a “personnel action” (defined broadly in 5 U.S.C. § 2302(a)(2)(A)) against an em ployee for “ leaking” information to the press, it must determ ine w hether the employee is covered by the “w histleblow er” protections. T he head of each agency is responsible for prevention o f reprisals prohibited by the A ct. 5 U.S.C. § 2302(c).

An employee o f the FBI is not protected by the A ct from reprisals for disclosure o f information to the press. A n employee o f any other branch of the D epartm ent is protected only if: (1) He is not in a position exempted from com petitive service because o f its confidential, or policymaking character; (2) the disclosure was not specifically pro­ hibited by law; and (3) the employee reasonably believed that the information evidenced violations, abuses, o r dangers specified by the Act. Because it is likely that any disclosure would be violative at least of the Privacy A ct (if not other statutes), it appears to us that D epart­ mental employees would find no protection in these provisions.

L arry A. H am m ond

Acting Assistant Attorney General Office o f L egal Counsel