The Supreme Court and those in charge of investigating the leak of Justice Samuel Alito’s opinion in the Dobbs case, an opinion that would overturn the current abortion regime by getting rid of Roe and Casey and returning the issue to the states, are finally dialing up the pressure in an attempt to find the leaker.
According to a recent report in CNN, the Supreme Court clerks are reportedly being told to sign affidavits and provide their cell phone records to the court, a step that has some of them worried enough that they are considering hiring legal counsel. Why they’d need counsel if they’re innocent is unclear.
Further, there’s a potential problem with them hiring counsel, if they do in fact do so, as was pointed out in Reason. That outlet noted that:
“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?”
Beyond the signed affidavits and cell phone records, it’s possible that the clerks could have to undergo in-person interviews, with CNN reporting that “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.”
Beyond the issue posed by the clerks lawyering up and what issues could stem from the mess of an investigation, Reason also notes that it might not even be a clerk that leaked the draft, saying:
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…
And the issues don’t end there. In addition to the mess that would result if the clerks hired lawyers to deal with the court, the potential that they’re not responsible, and the sort of privacy issues that could stem from this investigation, another problem is that the leak, which roundly criticized, might have not even been a crime, which will make it hard to really go after a leaker and conduct a thorough investigation of everyone who could be involved. The AP, recognizing that, notes that:
“Experts say leaking the draft opinion likely wasn’t a crime, and Curley’s investigative tools are limited. She [the SCOTUS marshal] could theoretically hire an outside law firm to assist, and in other judicial records cases the FBI has been called in. But it isn’t clear if she or others have the power to issue subpoenas to get material from journalists or the fewer than 100 people in the court — including justices — with access to a draft opinion.”
So, the Supreme Court is ramping up the pressure on the clerks in an attempt to find the leaker, but issues with what it can do and how the clerks are responding might make an already messy investigation even more difficult.