Wonderful thing, subpoenas. The Supreme Court investigation into the leak of Justice Samuel Alito’s Dobbs draft hasn’t yet hit the Wilford Brimley stage yet, but the investigation into the leak has clerks starting to sweat about the possibility:
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. …
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.
Well … good. If someone at the Supreme Court wants to play Deep Throat for political purposes, then let them feel the full force of Watergate-level scrutiny. There was no reason to leak that material that relates to anything except partisan interest in the decision. It involved no basis for a whistleblowing claim, in other words; this was not the Pentagon Papers. Someone leaked this decision because of the nature of the decision, not out of any wrongdoing by the court.
The bad news is that the apparent widening of the search suggests that the investigation hasn’t picked up the trail of the leaker yet:
The escalating scrutiny of law clerks reflects Roberts’ concerns about the breach in confidentiality and possibly further leaks. It also suggests the court has been so far unsuccessful in determining Politico’s source.
CNN features a comment from a legal analyst that suggests the court might refuse to allow its clerks to get legal representation in this probe. So far there’s no basis for that speculation, but it does raise an important point, which is: what happens if they do find the leaker? There does not appear to be a law against leaking internal SCOTUS material, which means that the clerks likely won’t face prosecution. That doesn’t necessarily mean they don’t needs lawyers, given that their job is likely to come to a screeching halt if they get accused of leaking the material.
However, it might mean that we won’t actually find out who leaked the draft even if Roberts and the court figure it out. The court may prefer to keep the identity of the leaker quiet and handle the punishment sotto voce. If they go public with the identity of the leaker, then it would likely serve to promote that person into a soft martyr for one side or the other of the abortion cause. Better to keep it largely under wraps but use their influence to make sure that a cloud follows them around in the legal industry by word of mouth.
If it ever does get to the Wilford Brimley stage, though, sign me up for the trial. Or at least the deposition. Unfortunately the full Deus ex machina climax to Absence of Malice isn’t available on YouTube, but this is a good taste. Watch the whole film, whose themes overlap this particular story to some degree. At the very least, it does sound as though Roberts wants to have someone’s ass in his briefcase at the end of this.