The Dobbs leak investigation seems to be getting serious, or, at any rate, its seriousness is now piercing the security of the leak probe — at least if you believe the latest report from CNN’s Joan Biskupic:
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 . . . 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.
The report is anonymously sourced. CNN frames it as coming from lawyers but is ambiguous as to whether those are lawyers for clerks or just lawyers around the Court (there are a lot of those): “Lawyers outside the court who have become aware of the new inquiries related to cell phone details warn of potential intrusiveness on clerks’ personal activities, irrespective of any disclosure to the news media, and say they may feel the need to obtain independent counsel.”
As usual, you can tell who the commentariat actually believes to be the likely leaker by how they behave. Conservative commentators and Republican politicians are out demanding heads. Jonathan Turley is talking about criminal liability for people who file false affidavits. Meanwhile, progressive writers are warning people to lawyer up and not hand over their phones. Maybe the leaker is a right-wing clerk or a conservative justice or spouse, but that scenario has never been as likely as the leaker being someone opposed to overturning Roe, most probably a progressive law clerk.
Should the clerks lawyer up and not cooperate? Talking to a lawyer is never a bad idea in an investigation (so long as you can afford it or have a friend willing to counsel you gratis), and if I were a clerk in that position or advising someone who was, I might well demand some sort of written assurance that the information collected won’t be used for any other investigative purpose than hunting the leak. But one piece of wisdom you need to acquire over time in counseling clients, especially in the private practice of law, is that the best legal advice is not always the best advice for the client’s overall interests. The clerks are employees at will, and could absolutely be fired for not cooperating (if the justices who employ them are willing to do so — it would be a lot dicier if Chief Justice John Roberts tried to pull rank and fire another justice’s clerk). The clerks’ career interests may be at war here with their strictly legal interests.
Should the Court be heavy-handed in pressuring its employees to cooperate in ways that they would not be legally required to do without a warrant? Yes, if it takes the leak seriously enough as a threat to the institution and intends to deter a repetition. Is the Court actually united behind that step? As Andy McCarthy notes, the liberal justices have been conspicuously quiet about the leak and the protests targeting their colleagues. That cannot be good for the Court’s collegiality. And there is much work ahead: With 32 cases still on the docket and pro-Roe protesters apparently planning to blockade the building, the next month should be one of the most difficult in the Court’s history. Yet the Court has not even publicly scheduled the next day for opinions to be released.