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

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. §2071w 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. §641may 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 ."
385
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
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