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.