A Supreme Court law clerk leaks the outcome of a pending case, he is caught, and all hell breaks loose.
If that sounds like fiction, it was: Brad Meltzer's 1997 bestseller "The Tenth Justice."
But long before it was fiction, it was fact. A recent article in the Northwestern University Law Review details, for the first time, the forgotten story of Ashton Embry, the law clerk to Justice Joseph McKenna who resigned in 1919 and was indicted in 1920 for using inside knowledge of a forthcoming opinion to profit on Wall Street. The episode made headlines in Washington, D.C., at the time, but appears not at all in biographies of Justice McKenna, books about the Court of that era, or even in the memoirs of the late Dean Acheson, who clerked at the Court the same year and later became secretary of state.
John Owens, himself a former law clerk -- and son of another law clerk -- wrote the article as a labor of love while working at the Justice Department. He stumbled onto a brief reference to the case in an old law review article, and pursued it by looking at Justice Department and Supreme Court files at the National Archives.
"I was consumed by it," says Owens, an associate at O'Melveny & Myers who leaves the firm later this month for a job as Assistant U.S. Attorney in Los Angeles. "I couldn't believe no one had written about it."
His historical pursuit led him to old case files and investigative reports, including one memorandum by a young Federal Bureau of Investigation agent named J. Edgar Hoover. A scandal-hungry journalist named Marlen Pew first heard about the scheme and went to Chief Justice Edward White who, according to a later report, wept upon hearing of the scandal visited upon his Court. On Dec. 16, 1919, Washington papers reported that a leak from within the Court about the outcome of United States v. Southern Pacific Railroad had helped a group of Wall Street speculators. Later that day Embry, who had been McKenna's clerk for nearly nine years, resigned to devote himself to a bakery business he had run while serving as clerk.
The Justice Department convened a grand jury and began an investigation. But from the start, the case against Ashton Embry was flawed. The government's informant was a shady character, and it had difficulty in locating a law that Embry had actually violated. Insider trading was not yet illegal, and leaking a Court opinion early violated the Court's customs but not any statute. Ultimately, Embry and his co-conspirators were indicted for depriving the United States of the "right and privilege" to have Supreme Court decisions handed down as its customs prescribed. The defendants hired a "dream team" of lawyers, proclaimed their innocence, and challenged the indictment. But in 1921, the Court without comment denied Embry's appeal of the indictment.
There the matter sat until 1929, when without explanation, the government dismissed the indictment. "The war between the Department and the Dream Team was never fought," Owens wrote, speculating that the weakness of the government informant among other factors led prosecutors to think they could not win their case before a jury. Owens concludes, as did Hoover, that Embry was guilty as charged. "Too many independent pieces of evidence point in his direction, and he never adequately explained them all away," Owens wrote.
Nonetheless, Embry barely skipped a beat in his career as a baker. He prospered, ultimately running a chain of seven bakeries in the D.C. area until he retired in 1950.
In a delicious coda, when Embry died in 1965 he requested that his ashes be scattered on the grounds of the Supreme Court. His son Lloyd, a noted portrait artist, fulfilled the request "under the cover of darkness."
While researching the article, Owens reflected on his own clerkship for Justice Ginsburg, and his father Jack's clerkship for the late Justice Lewis Powell. It would be nearly impossible for a modern-day Supreme Court clerk to do what Embry did, says Owens -- although he says he is surprised that lower-court clerks, under less scrutiny, do not give in to temptation more often. The ethical obligations of Supreme Court law clerks today are deeply ingrained, Owens says.
"At the Supreme Court now, there is a code of conduct for clerks, and the chief will talk to us about how important confidentiality is," says Owens. "It is also made clear to the printers, the librarians, who may see an opinion before it is released."
More relevant laws and precedents are also in place, including one that declares the United States' right to "honest government services." Says Owens: "I would not want to be the law clerk who tests that law." Meanwhile, Brad Meltzer, who has read Owens' article, says, "Ashton Embry was the best response for that one Supreme Court clerk who said, 'The Tenth Justice could never happen.' The funny thing is, I never knew about the Embry case when I wrote "The Tenth Justice" -- it came up years later, when the whole Supreme Court clerk lovefest/fascination started. And I thought Ben Addison [his main character] had it rough."