The Volokh Conspiracy
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We are now one month removed from Politico's bombshell report. We still have no idea who leaked the opinion. No one has come forward to collect their plaudits from MSNBC. Whoever did the deed is keeping quiet–at least until the end of the term. And the investigation continues. For the longest time, the marshal of the Supreme Court was the subject of many Trump-related conspiracy-theories. But now, the marshal is exercising real authority. Joan Biskupic has an exclusive:
Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.
Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel. . . . Chief Justice John Roberts met with law clerks as a group after the breach, CNN has learned, but it is not known whether any systematic individual interviews have occurred.
"That's what similarly situated individuals would do in virtually any other government investigation," said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."
Sources familiar with efforts underway say the exact language of the affidavits or the intended scope of that cell phone search—content or time period covered—is not yet clear.
Here are my tentative thoughts.
First, on sourcing, Joan cites "three sources with knowledge of the efforts." These are not sources "close to the Court," or some such language. Joan's sources could be clerks, or the Justices, but I think it more likely that the sources are the type of people she quotes from: "appellate lawyer with experience in investigations and knowledge of the new demands on law clerks."
Second, I am usually very critical of leaks, but I'll admit, this sort of leak does not trouble me as much as leaks about internal deliberations. Yes, even law clerks are entitled to competent representation of counsel–especially in the face of an investigation that could lead to severe sanctions. And I think an attorney, in the course of representation, could decide to speak to the press to promote his client's interests. But there is an open question: does the attorney-client privilege survive in light of a duty of confidentiality to the Court? That is, could a clerk tell her attorney about some internal information in order to prepare a legal strategy? Could the Chief fire a clerk who confides in this lawyer? The fact that the appellate lawyer quoted is even aware of this matter suggests, at a minimum, that clerks are seeking counsel and talking.
Third, the Supreme Court marshal office has, as far as I know, zero background in performing forensic analysis of phone records. Unless experts from DOJ are detailed, I am skeptical the Supreme Court has the competency to perform these tasks internally. Moreover, the idea of pulling "phone records" is so quaint. Anyone serious about leaking the document would use secure and encrypted channels like Signal, Telegram, or something more secure. Do we really think the law clerks are sliding into Josh Gerstein's Instagram DMs? More likely the leaker used sophisticated channels with Politico's national security reporter, Alexander Ward.
Fourth, the climate inside the Court must resemble a prison. There are massive security barriers around the building, and I understand Second Street–where the garage entrance to the Court is located–has been shut down. Now, every clerk must submit their private records to the marshal. Is there any expectation of privacy? Or protocol to prevent disclosure? And will the marshal start to contact the people that law clerks called? I imagine some Justices may resist this intrusion into their clerk's confidential information.
Fifth, law clerks are being asked to sign affidavits for an explicit purpose: if they lie, they face charges of making false statements to a government official. And, in theory, they can be criminally prosecuted. But what happens if a clerk is not at fault? Joan explains that as many as 75 people may have had access to the opinion:
If tradition was followed, copies were sent electronically and, separately, printed out and hand-delivered to chambers by aides to the marshal. Other employees connected to the nine chambers would have had some access to the opinion. CNN could not verify that number, but former law clerks say the document could have been sent through regular channels to nearly 75 people. It is not known if court officials are asking employees who are part of the permanent staff, beyond the one-year law clerks, for their phone records.
Ultimately, three-dozen law clerks–the cream of the crop–are being put through the wringer for an act that may not have been taken by a clerk. These are the sort of people who have never been sent to the principal's office, or faced anything but praise. This entire experience must be so jarring. To this day, I still do not think a clerk is at fault.
Sixth, Joan does not know if the five-member block survives:
But it is difficult for anyone outside the building to know whether the Alito draft still commands a majority on a court tightly divided on abortion rights and split over how quickly to reverse precedent.
There are no opinions this week. It ain't over till it's over.
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