Investigators at Supreme Court Demanding Clerks Provide Cell Phone Records and Sign Affidavits
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.
The court’s moves are unprecedented and the most striking development to date in the investigation into who might have provided Politico with the draft opinion it published on May 2. The probe has intensified the already high tensions at the Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.
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.
Regular readers might recall that I immediately called for law clerks to be required to sign affidavits or be fired. I think the reaction here was mostly reasonable, but on Twitter (which largely leans left) people treated me like I was some combination of insane and/or fascist. I was also told there was no legal way investigators could possibly require law clerks to sign affidavits. I was told this repeatedly with Great Confidence.
Well, the clerks sign an agreement before they begin their jobs pledging extreme confidentiality. Justice Scalia once said: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Yes, they can demand this — and more power to justices who think like Justice Scalia.
But don’t clerks have Fifth Amendment rights against self-incrimination? They surely do. Here’s how it generally works at a police department when officers are required to give statements as part of the investigation of a police shooting, where an officer obviously has potential legal jeopardy, especially these days. I would imagine it would work the same way at the Court. The investigator would demand a statement. The clerk would refuse, citing the Fifth Amendment. The investigator would order the clerk to give a statement anyway, and inform the clerk that any failure to do so would subject the clerk to discipline for insubordination, up to and including discharge. This process effectively immunizes the employee against having that statement used against him or her in a criminal proceeding, while allowing the public entity — a police department or, here, the Court — to conduct a necessary investigation.
It would be interesting if any justices objected to this. My understanding is that the clerks are employees of the Court, but are treated as employees of the justices out of courtesy. Whether an individual justice could, or would, sanction a clerk’s refusal to comply, I don’t know.
I would imagine the justices would be on board, and that the Chief could and would overrule them if necessary. My position —- and I imagine the position of the Chief Justice, at least — has always been that maintaining the viability of a prosecution is not the top priority.
My guess would be that all of the justices are eager to see the leaker rooted out and made into a particularly nasty public example. If they fail to do so, it will have huge implications for the possibility of this becoming commonplace, which would destroy trust inside the Court. Which is probably not at a high point right now anyway, but which needs to be in years going forward if this institution is going to work.
https://reformclub.blogspot.com/2022/05/query-for-cnns-joan-biskupic.html
“Should you not inquire (and report) if the investigators are also investigating non-law-clerk Supreme Court personnel in a similar fashion?*
“Should you not inquire (and report) if the investigators are also investigating all nine Supreme Court Justices in a similar fashion? You might ask each individual Justice if he or she authorized the leak, or if he or she knows the identity of the leaker. It is up to you to ask.”
“To be sure, I do not think we can rule out the possibility that the leak was from someone other than a law clerk–and, perhaps, by a person who is not Supreme Court staff at all. Furthermore, I do not think we can rule out the possibility that the leak (whoever did it) was authorized by a Justice.”
“Biskupic wrote: “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.” Seth’s response: You might know if you ask.”
steveg (5aabd4) — 5/31/2022 @ 8:59 amThe “three sources with knowledge” were not allowed to even leak out the stuff about the law clerks to begin with.
And no, you do not have a right to “inquire (and report)” about confidential matters any more than you have a right to solicit and resell stolen goods.
I always thought the Pentagon Papers Case (New York Times Co. v. United States) was a bigger travesty than Roe v. Wade from a juridical point of view. An out-of-control Court making up the law as it went along.
nk (ff4ec3) — 5/31/2022 @ 9:17 amFor what crime and under what law would a clerk (or anyone else) be prosecuted?
Rip Murdock (d2a2a8) — 5/31/2022 @ 9:22 am“[T]he Supreme Court, where the conservative majority is poised to roll back a half-century of abortion rights and privacy protections.”
Here CNN is presenting facts not in evidence, feeding off the liberal parade of horrors that they’ve built up out of the Alito draft.
The privacy protections are not challenged in the Alito draft, except as they are used to justify killing fetuses. Alito goes to great pains to demonstrate why abortion is not like those other things, how Roe has failed to be settled law even after 50 years, and why a privacy claim is woefully insufficient.
Matter of fact, Casey discarded the privacy claim 30 years ago. Alito’s draft doesn’t lay the groundwork for overturning even Obergefell, let alone Griswold.
Kevin M (eeb9e9) — 5/31/2022 @ 9:25 amMy guess would be that all of the justices are eager to see the leaker rooted out and made into a particularly nasty public example
At least 8 of them anyway.
Kevin M (eeb9e9) — 5/31/2022 @ 9:25 amBTW, this CNN article seems to rely on leaks from the Court.
Kevin M (eeb9e9) — 5/31/2022 @ 9:32 amIt seems like the clerks would want to do anything to establish that they aren’t the leaker and yet are smart enough to have already sought legal counsel. Personal phone records, which might have nothing to do with any leak, could be incriminating for other reasons. I’m not a law clerk but even I would know that it would be prudent to obtain legal counsel.
Dana (2c7c1d) — 5/31/2022 @ 9:35 amBreaking:
Rip Murdock (d2a2a8) — 5/31/2022 @ 9:49 amDana, OT comment but I found a good article by Tim Carney that I think you’ll like about religion and gun violence. Link in the open thread.
Time123 (fcfc1c) — 5/31/2022 @ 9:56 am1. I hope they find the leaker.
2. I hope a SC clerk is smart enough to get away with it. Not that I want them to escape consequences for this, but because I want them to be smart enough to.
So I guess I hope that they’re caught more through bad luck them stupidity on their part.
Time123 (fcfc1c) — 5/31/2022 @ 9:57 amSussmann, who worked for Clinton, acquitted of lying to FBI in 2016
In DC, only the party affiliation matters with a jury.
Kevin M (eeb9e9) — 5/31/2022 @ 10:36 amThe investigator would demand a statement. The clerk would refuse, citing the Fifth Amendment. The investigator would order the clerk to give a statement anyway, and inform the clerk that any failure to do so would subject the clerk to discipline for insubordination, up to and including discharge.
Suppose instead of phone records, the investigator brought in a lie detector. How would that play differently?
Kevin M (eeb9e9) — 5/31/2022 @ 10:38 amI think they should also ask for bank records. There are lots of reasons a clerk might leak information for money, and lots of people who would pay plenty for that kind of leak.
Kevin M (eeb9e9) — 5/31/2022 @ 10:41 amAs for “confidential surveys” being leaked, that happened at my alma mater when the faculty was surveyed about how well minority students were doing in their classrooms. Some very frank responses got outed.
Kevin M (eeb9e9) — 5/31/2022 @ 10:43 amKevin M – if my employer demanded that I turn over my cell phone records *or* submit to a lie detector, I would quit on the spot.
aphrael (3a655c) — 5/31/2022 @ 10:46 amSame for bank records. The fact that you pay me to do work for you does not entitle you to access this kind of information.
aphrael (3a655c) — 5/31/2022 @ 10:47 amnk
steveg (5aabd4) — 5/31/2022 @ 11:41 amI believe the inquire and report remarks were aimed at the reporter and am in agreement that no one should be telling the reporter anything, but clearly that genie has left the bottle and is enjoying the view. Roberts has a bigger problem than he thought, unless he is orchestrating the current leakage
Polygraphs are good to intimidate staff, but are not that reliable.
Rip Murdock (d2a2a8) — 5/31/2022 @ 11:43 amTime123
I’d guess hubris is a form of stupidity.
Washington is great at cover up.
steveg (5aabd4) — 5/31/2022 @ 11:49 amAndrew Weismann took 15 cell phones and wiped them all “accidentally” by entering incorrect passwords 11 times into each phone. Somehow his colleagues were unable to provide the correct passwords to their phones so Weismann “war dialed”. Hillary Clinton’s lawyers were able to decide which of her emails were “relevant” and all of her devices were destroyed
The text records things would worry me if I were a clerk. Did I ever send a text that is embarrassing in hindsight? Did i ever complain about a judge or vent about something at work or offer an intemperate thought about case or potential case? I assume all of that will come out .
Time123 (fcfc1c) — 5/31/2022 @ 12:03 pmProf. Josh Blackmun is not impressed:
Rip Murdock (d2a2a8) — 5/31/2022 @ 12:16 pmWell, the clerks sign an agreement before they begin their jobs pledging extreme confidentiality. Justice Scalia once said: “If I ever discover that you have betrayed the confidences of what goes on in these chambers, I will do everything in my power to ruin your career.” Yes, they can demand this — and more power to justices who think like Justice Scalia.
Seems Scalia was quite the Trumpian. So throw the clerks under the bus, eh? What about the justices themselves? Who is to say one of them didn’t leak?!
This is all on Alito. It was his draft; his paperwork to keep track of and given the be-robed bureaucrat’s public histrionics at the SOTU years back and pronouncements about not keeping ‘silent,’-and his comments after the leak was made public… no justice is above scrutiny on this.
Besides, if the leaker disregarded the spirit of confidentiality to begin with, signing another piece of paper won’t mean much. It has been a month. It’s a closed system w/a small staff. You get better performance from a 1974 Pinto; even Queeg managed to learn who ate the strawberries.
They’re sloppy administrators who couldn’t find their own car keys– because they’re driven to and from work in big, black, expensive government SUVs. Next thing you know, these sheltered, life-time-appointed bureaucrats will blame– Vladimir Putin.
DCSCA (9cde7e) — 5/31/2022 @ 12:38 pmIf it’s a justice, then I go with Beyer….one last middle finger as he heads for the exit. I say that with zero confidence and zero hope
AJ_Liberty (a36eed) — 5/31/2022 @ 1:23 pm@24. My money is on Alito, as noted in more detail on previous threads over past weeks.
But the accuser class certainly shouldn’t put themselves above scrutiny- unless that was part of the plan all along. But a month is long enough for these paper jockeys to run this race to ground. If they can’t manage themselves why should 330 million citizens give a damn on any judgements they make to manage everybody else. The SCOTUS should have shut down; ceased all work and tracked this down immediately. But, as is the nature of government bureaucrats and the Mississippi River- they just keep rolling along.
DCSCA (3f26d7) — 5/31/2022 @ 1:38 pm@25, Certainly Columbo, Barnaby Jones, Matlock, and, throw in a dead body, Quincy would have had this resolved in 60min. If only….
AJ_Liberty (a36eed) — 5/31/2022 @ 1:44 pmThe leaker is a patriot and a hero. If they don’t lie they can’t prosecute as no crime was committed. Sussmen verdict shows what kind of jury you get in d.c. if they try to prosecute. All democrat activists.
asset (449f4b) — 5/31/2022 @ 2:23 pmKevin M – if my employer demanded that I turn over my cell phone records *or* submit to a lie detector, I would quit on the spot.
That’s your right, of course. But many government employees sign away those rights to the point where termination for cause is the alternative. Go read the security clearance agreements some time. There are people in government who have to periodically pass a lie detector as a matter of ROUTINE.
Note also Patterico’s comments about inadmissibility of those cell records. After an assertion of rights, they can still demand them for employment purposes but they cannot be used in a criminal proceeding.
Note that “your” cell phone records can be retrieved from your provider instead. This is different from cell phone contents which — barring the incriminating document itself — are unlikely to be relevant.
Kevin M (eeb9e9) — 5/31/2022 @ 2:24 pmSame for bank records. The fact that you pay me to do work for you does not entitle you to access this kind of information.
Sadly, the Supreme Court disagrees with you.
United States v. Miller (1976)
Also “third-party doctrine“
Kevin M (eeb9e9) — 5/31/2022 @ 2:27 pmPolygraphs are good to intimidate staff, but are not that reliable.
The CIA believes in them, as does the rest of the intelligence community.
Kevin M (eeb9e9) — 5/31/2022 @ 2:30 pmDid i ever complain about a judge or vent about something at work or offer an intemperate thought about case or potential case? I assume all of that will come out .
I would think that Roberts isn’t a fukkwit and knows that that kind of search needs a “special master” kind of separation.
Kevin M (eeb9e9) — 5/31/2022 @ 2:32 pmThe leaker is a patriot and a hero. If they don’t lie they can’t prosecute as no crime was committed. Sussmen verdict shows what kind of jury you get in d.c. if they try to prosecute. All democrat activists.
Isn’t it cool that asset believes what mg thinks?
Kevin M (eeb9e9) — 5/31/2022 @ 2:33 pmIf it is a justice, I go with the obvious — Sotomayor. She IS a fukkwit and well past her Peter Point.
Kevin M (eeb9e9) — 5/31/2022 @ 2:35 pmAnyone serious about leaking the document would use secure and encrypted channels
Unless it was Sotomayor who probably has to have someone print out her emails.
Kevin M (eeb9e9) — 5/31/2022 @ 2:36 pmNothing will come of this, because Ginni Thomas is the one who leaked the documents.
Davethulhu (ee3282) — 5/31/2022 @ 2:41 pmSussmen verdict shows what kind of jury you get in d.c. if they try to prosecute.
The leak is a violation of confidentiality, but apparently not of the law.
Rip Murdock (d2a2a8) — 5/31/2022 @ 2:48 pmAsk the CIA about Aldrich Ames and polygraphs.
Rip Murdock (d2a2a8) — 5/31/2022 @ 2:49 pmThe CIA believes in them, as does the rest of the intelligence community.
Rip Murdock (d2a2a8) — 5/31/2022 @ 2:51 pmMiller only allows the government to retrieve bank and phone records without a warrant, not all private employers.
Rip Murdock (d2a2a8) — 5/31/2022 @ 2:53 pmThulu’s absurd remarks show how much of an issue this is to the left. They have no problem lying and smearing a political opponent even when owning the truth would win them accolades from their peers.
NJRob (038f80) — 5/31/2022 @ 2:57 pmIt is a lefty for sure! If they can’t control the Court, they will defile it. Drag it down to their gutter. Muddy its legitimacy. It is what lefties do. Across the board, with any institution, in anything having to do with social issues.
nk (fb96b0) — 5/31/2022 @ 3:18 pmYes, it’s inconceivable that Ginni “Insurrectionist” Thomas would leak anything.
Davethulhu (ee3282) — 5/31/2022 @ 3:29 pmIf the DCSCA theory is true, is Alito using long lost cousins to keep Beer Boy, Based Angelina, and Goody Two such in line?
urbanleftbehind (2b999d) — 5/31/2022 @ 3:31 pmLie detectors only work if you believe in them, and also tell a second lie, irrelevant to the inquiry. The skill of the person conducting the lie detector test lies in getting someone to tell the “test” lie and worry about it.
Sammy Finkelman (1d215a) — 5/31/2022 @ 3:32 pmHey, thulu… chill with the Depends shaming.
urbanleftbehind (2b999d) — 5/31/2022 @ 3:33 pmYes, it’s inconceivable that Ginni “Insurrectionist” Thomas would leak anything.
Yes, it is in fact inconceivable for a person like Ginni Thomas to mess with her husband of 35 years, his job, and his stature in society, in that way, for no explicable reason. To whom it is not inconceivable, all I can say is: “Ginni Thomas is not like the women you know.”
nk (fb96b0) — 5/31/2022 @ 3:51 pm@43. Meh. Just revisit his public comments, attitudes and body language over the years. He probably believes he should be Chief Justice. It’s his own paperwork he can’t manage.
Hey Sam- your fly is open.
DCSCA (064ab0) — 5/31/2022 @ 4:22 pmActually sounds like too many women I do know. Like the woman walking into the bar with her boyfriend and since you know her ways and kinda feel sorry for the boyfriend, you call 911 the minute she starts talking crap to the bikers about how close they are to her boyfriends truck. “You can’t park that close to my boyfriends truck!” Bikers all eyeball boyfriend like the the limping wildebeast he is.
steveg (2a2ec7) — 5/31/2022 @ 5:45 pmMiller only allows the government to retrieve bank and phone records without a warrant, not all private employers.
We are not talking about private employers wrt court clerks. Private employers can’t get your phone records, either (but they could get their phone records).
Kevin M (eeb9e9) — 5/31/2022 @ 6:59 pmWow, steveg, you have some nasty exes.
Kevin M (eeb9e9) — 5/31/2022 @ 7:01 pm@15. As for “confidential surveys” being leaked, that happened at my alma mater when the faculty was surveyed about how well minority students were doing in their classrooms. Some very frank responses got outed.
That’s not quite the same as a rough SCOTUS draft getting loose, where daily operations and decision making impacts the lives of 330 million people.
“Yeah, every country doctor should run his office like the Lunar Lab.” – Dr. Mark Hall [James Olson] ‘The Andromeda Strain’ 1971
DCSCA (136080) — 5/31/2022 @ 9:51 pmThat’s not quite the same
To the professors who said things like “some of these kids come here unprepared” is was just the same.
Kevin M (eeb9e9) — 5/31/2022 @ 11:33 pmTime for Bondo Barr and his Spray Painter Durham to rescue the cause.
mg (8cbc69) — 6/1/2022 @ 2:46 amI wouldn’t say the USIC believes in polygraphs – at least not to the extent that you think they do. Sure, they will conduct regular polygraphs of those with clearances, but failure does not mean termination. It usually means a temporary suspension of clearances until an investigation can explain if there is any merit to the failure.
And yes, those with clearances sign their rights away – regular polygraphs, recurring background checks, drug tests, and financial audits. None on their own can catch a leaker or a spy but together it makes it really hard for a spy or a leaker to do their thing.
Hoi Polloi (9b0a99) — 6/1/2022 @ 3:51 amAsk Aldrich Ames or Robert Hannssen how hard it was to get away with spying.
Rip Murdock (d2a2a8) — 6/1/2022 @ 3:27 pmAnyone serious about leaking the document would use secure and encrypted channels
But they wouldn’t keep their very contact with a possible channel of a leak a secret, especially since at first there would be no intention to leak. And there might be text messages indicating an agreement to meet or call.
Sammy Finkelman (1d215a) — 6/2/2022 @ 3:50 pmAlito’s draft opinion insults Kennedy’s legacy — will Gorsuch and Kavanaugh sign on?
‘Supreme Court Justice Samuel Alito’s recently leaked draft opinion shows there is still reason for hope that the constitutional right to abortion can survive. That may seem counterintuitive. But not when you consider how far over the top Alito had to go to try to justify overturning Roe.
Alito acknowledges that to overturn the right to abortion, it would have to be “egregiously” wrong, “a serious matter.” So, he unloads in the most disrespectful way on retired Justice Anthony Kennedy and the 15 other Justices who — over the last 50 years — wrote, applied or reaffirmed Roe v. Wade and Planned Parenthood v. Casey.
But Kennedy was not only the co-author of Casey. He was the mentor of Justices Neil Gorsuch and Brett Kavanaugh. Without him, they almost certainly would not be members of the court today. And it is now painfully clear that if they sign the leaked draft, they will destroy Kennedy’s judicial legacy. They should have second thoughts, and third, too…
Alito’s untenable attack on the justices who recognize unenumerated liberty rights
In his leaked draft, Alito repetitively claims that Roe’s “concocted” conclusions were “far outside the bounds of any reasonable interpretation” of the Constitution, “ignored or misstated” the history, “usurped the power to address [the] question of” abortion, and were an “abuse of judicial authority.” He piles on by saying that Roe’s “unfocused” analysis “ranged from the constitutionally irrelevant” to “the plainly incorrect.” He also insists that Kennedy’s Casey opinion “perpetuated Roe’s errors,” and “went beyond this Court’s role in our constitutional system.”
Stooping to such extreme hyperbole does not make it true. Joining it would unjustly impugn the integrity and thoughtfulness of many well-respected justices — conservatives and liberals alike — whose decisions fall squarely within the long-recognized and accepted understanding of our Constitution.
To put Alito’s attacks into perspective — many of which more accurately apply to his own leaked draft, not Roe or Casey — if there was ever a judicial Hall of Fame of the most eminent and conscientious justices, most of the judges he takes down in his draft would be unanimous selections. Alito’s hubris is boundless. Ten of the targets of his ire are Republican appointees, including Justices Kennedy, O’Connor, William Brennan, Potter Stewart, Lewis Powell and John Paul Stevens. The other six, Democratic appointees, include Justices Thurgood Marshall, Ruth Bader Ginsburg and three current Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan…
Gorsuch testified at his confirmation hearing that Roe was the “law of the land.” He did not say it was one of the rarest of cases that should be overturned. Nor did Kavanaugh when he called it “settled law”.
Will they sign their names to overturn Roe and Casey? Will they sign their names to characterizing Kennedy as not just egregiously wrong, but as a “usurper” who “abused” and improperly “arrogated” judicial authority on one of the most important questions ever to come before the court? Will they sign on to such baseless assertions about the justice they worked for and who played such an important role in advancing their careers?’ -TheHill.com
Odds improving that old Justice Alito, not a young clerk with a future, is the leaker.
DCSCA (f78a88) — 6/2/2022 @ 4:21 pmOur esteemed host concluded:
We haven’t seen the dissents yet, but my guess is that, at least when it comes to justice Sotomayor, it will be strident and vituperative. If it turns out to be one of her clerks who leaked the draft, do you believe that she wouldn’t defend the clerk?
The libertarian, but not Libertarian, Dana (651016) — 6/2/2022 @ 5:12 pm@58. Don’t believe a clerk w/a future did it. A zealous, impassioned, frustrated Catholic justice, not shy about making his POV known and adverse to be silenced- like at SOTU speeches- in career twilight did it to derail any efforts by the Chief Justice to dissuade the less younger, devoted newbies on the court, knowing full well the clerks of the more liberal justices would be instantly suspect.
It’s deviously clever; worthy of a Pope, circa 1285. It’s all on Bureaucrat Alito; it was his paperwork to keep track of.
Justice Alito Cited a Few Cromwellian Nightmares In His Draft Opinion
Maybe we can do better for legal theory in 2022 than a guy who practiced law under Charles I.
https://www.esquire.com/news-politics/politics/a39918468/alito-draft-opinion-roe-citations/
DCSCA (2a0a36) — 6/3/2022 @ 2:34 amDCSCA (2a0a36) — 6/3/2022 @ 2:34 am
Preliminary drafts are circulated. A justice assigned to an opinion needs others to agree or make proposed revisions. If they cannot reach agreement or the other justice has a point he wants to make he writes a concurring opinion. And there are also dissents.
This was not stolen out of Justice Alito’s chambers. It is a completed worked opinion.
That’s the problem for the Supreme Court. They need to circulate opinions. And usually, it goes to all nine. I don’t know if it might also go to a printer. They certainly must have sent it to some sort of a printer before email became common and itt is probably still that way.
Sammy Finkelman (b434ee) — 6/3/2022 @ 5:55 am@60. Conjecture. You have no idea if it was stolen of not– or left it in the Porcelain Reading Room– nor how may copies of the draft existed– but certainly sensitive government information is tracked/tagged/counted etc. Making excuses for bureaucratic sloppiness doesn’t cut any ice. Alito’s draft; Alito’s responsibility to tag and keep track of. If this was SCOTUS Inc., he’d be fired- or worse, transferred to the Oklahoma office.
DCSCA (a51ee4) — 6/3/2022 @ 9:52 am