Supreme Betrayal: The SCOTUS Leak Investigation Ramps Up
Here’s my advice to Supreme Court clerks who have been asked for phone records and affidavits.
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How do you solve a problem like the leaker? How do you catch the mole and pin them down?
If you’re Chief Justice John Roberts, mortified by the leak of the initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization, you appoint Colonel Gail Curley, the Marshal of the Supreme Court, to investigate. And here’s what Colonel Curley has been up to, according to Joan Biskupic’s CNN exclusive:
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….
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.
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.
“That's what similarly situated individuals would do in virtually any other government investigation,” said one appellate lawyer with experience in investigations and knowledge of the new demands on law clerks. “It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection.”
That’s what we know, assuming the accuracy of the report by Biskupic—a seasoned, respected, well-connected SCOTUS reporter. But there’s still a lot that we don’t know:
We don’t know the precise timing of the effort to gather phone records and affidavits. The present progressive tense in Biskupic’s piece—“are escalating their search”—suggests this is something that just happened or is happening right now. But it’s also possible that the initial requests were made a little while ago and Biskupic only learned about them more recently. (I would have expected such steps to have been taken within days of the leak.)
We don’t know the exact nature of the steps being taken. As of now, the Court is conducting an internal investigation of what it appears to be treating as an ethical and employment matter. Since there’s no criminal investigation and no grand jury issuing subpoenas, presumably the Court is just asking clerks to provide phone records and affidavits on a voluntary basis, not ordering them to do so through compulsory process. But we don’t know how aggressively it’s asking, which could range anywhere from “it would be lovely if you could turn over these records” all the way to “turn over these records now, or else.” (The fact that clerks are contacting outside lawyers—who I’m guessing are Biskupic’s “three sources with knowledge of the efforts”—suggests the clerks are being given at least some time to consider and respond to the requests.)
We don’t know whether similar requests for records and affidavits have been made of the justices, the justices’ family or household members, or non-clerk staffers at the Court, who also might have had access to the draft opinion. (Biskupic’s report doesn’t claim that only clerks have been asked.)
We don’t know the nature of the phone records being requested. The investigation might be asking for metadata like call logs showing whom a clerk called and when, or it might be asking for the substance of communications, such as the actual contents of text messages.
We don’t know the nature of the affidavits being requested. They could be affidavits confirming the accuracy and completeness of the phone records being provided (as Professor Orin Kerr suggests), they could be affidavits asking each clerk to attest that they had no involvement in the leak, or they could be affidavits that cover both bases (and more).
We don’t know who is on Colonel Curley’s team and whether she might be drawing upon resources beyond the Court, including experts in forensic analysis, for this investigation.
Keeping in mind what we know and don’t know, how should the SCOTUS clerks respond to these requests? Since they appear to be seeking outside counsel, here’s mine, in the form of an open letter.
Dear Supreme Court clerks for October Term 2021,
Greetings. I hope you are well—although if news reports are accurate, things are not great at 1 First Street these days.
Right now you’re all wondering: should I cooperate with Colonel Gail Curley’s leak investigation? I say you should, and here’s why—if you’re guilty, and if you’re innocent.
If you’re the SCOTUS leaker, then you should confess. You can do it privately to the Court, or you can do it publicly—e.g., in an unapologetic New York Times op-ed, defending your actions—but you should do it forthwith.
First, it’s the right thing to do. It’s not fair for you to place all of your fellow clerks, as well as the justices and non-clerk staff, under a giant cloud of suspicion. If you think that what you did was right—and presumably you do, since you’re a brilliant SCOTUS clerk, you thought it through, and you decided to do it—then you should have the courage to own what you did. You shouldn’t let others take the blame for your actions; that would be, as retired Justice Anthony M. Kennedy bluntly put it, “cowardly.”
Second, it’s the self-interested thing to do—at least if you don’t want to go to prison. If you falsely deny being the leaker but eventually get caught—and you have to plan with that worst-case scenario in mind, especially since it not infrequently comes to pass—you’ll be in much deeper trouble than you are right now.
Yes, there are non-frivolous theories for filing criminal charges against you based on your leaking—but as I have argued, they’re aggressive readings of the statutes in question, and it’s not clear that they’d be accepted by a judge or jury (or, ironically enough, this Supreme Court). I also think it’s unlikely for you to be prosecuted for the leak because the last thing Chief Justice Roberts wants is to keep the leak in the news, whether through a jury trial or even the slow drip of pretrial proceedings.
But if you lie to investigators—e.g., by claiming in an affidavit or an interview that you are not the leaker, when you are—that’s a clear violation of 18 U.S.C. § 1001. That statute goes beyond criminal matters and criminalizes false statements made “in any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government, so it would include an investigation being conducted at SCOTUS by the Marshal.
And the likelihood of you being prosecuted for lying to investigators is greater than the likelihood of you being prosecuted for leaking. Why? The feds place a high priority on incentivizing truthfulness and deterring dishonesty in investigations—which is why you often see freestanding § 1001 prosecutions where no underlying crime has been charged. To let you go unpunished for lying in a high-profile investigation would send a terrible message. And any trial of you for lying in the investigation would focus more on you than on the leak, more on the cover-up than on the crime—making it a more palatable prosecution, from a PR perspective, to Chief Justice Roberts.
Now let’s look at the other case: how should all of you innocent clerks respond to these requests for information?
Several commentators—like Professors Dan Epps and Leah Litman, as well as Washington Post columnist Jennifer Rubin—have criticized or raised concerns about the requests for phone records. They have suggested that you should resist or consider resisting the requests, perhaps after consulting with outside counsel.
While I understand their perspectives and share some of their concerns, I respectfully dissent. I think you should cooperate, for two reasons.
First, it’s the right thing to do. In my personal opinion—remember, my fictional Times op-ed by the leaker was just that, fictional—the leak was both deeply wrong and damaging to the Court. If you’re devoting a year of your life to serving the Court, presumably you respect the Court as an institution—and if you respect the Court as an institution, you should want to do your part to help apprehend the leaker.
Remember: you’re a freaking SCOTUS clerk. You hold one of the most coveted jobs not just in the legal profession, but the world—a job that thousands of other law students and young lawyers would give up a non-essential organ for—and that comes with certain responsibilities.
If you’re going to reap the rewards of being a SCOTUS clerk, ranging from a $400,000+ law firm signing bonus to greatly enhanced chances of becoming a judge or justice, you should do your part when called upon to help the Court. As Professor Laurence Tribe told Tierney Sneed of CNN, you can certainly refuse to cooperate—but if you do, then you should accept the consequences, which “should include losing [your] job and losing the CV value, the resume value that job would otherwise have going forward.” In other words, you can’t have your SCOTUS cake and eat it too.
Second, complying with the requests is the self-interested thing to do. You’re a clerk from the October Term 2021 class—a clerk cohort that right now is going down in infamy. If the leaker is never discovered or not discovered until decades later (a la Deep Throat), for years there will be an asterisk next to your name at the top of your resume: *Possibly the SCOTUS leaker. You do not want that. Instead, you want to make a record of your innocence—perhaps by swearing-out an affidavit declaring that you are not the leaker, which you can present to any potential employer harboring doubts about your trustworthiness.
Some might argue that you should object to the requests on principle. What principle is that? Privacy? We’re not talking about Gail Curley busting into your Capitol Hill apartment in the middle of the night without a warrant. You’re in an employment relationship with the Court, and employers ask employees to provide information or to sacrifice privacy all the time. For example, think of employers reserving the right to access employees’ work emails (like Chapman University reserving the right to access Professor John Eastman’s work emails, which it turned over to the January 6 Committee). You have a great job; it’s not unreasonable for your employer to ask a great deal of you.
Now, I realize there’s a difference between asking for privacy sacrifices upfront versus in the middle of a job; fine. You might say, “I didn’t sign up for this”—i.e., you had no expectation, when you accepted your clerkship, that you might be asked to provide such information.
But I’m going to make another assumption about you as a SCOTUS clerk: you’re an overachiever and rule follower with little or nothing to hide—especially this year, when you’ve been clerking for the Supreme Court, working like a dog, and too busy to get into trouble. Your call logs, far from suggesting that you’re moonlighting as a drug dealer, will likely reveal nothing worse than the fact that you didn’t call your mom on Mother’s Day until 10 p.m. (because even though it was a Sunday, you were working on a draft opinion the whole day and lost track of time).
Are you angry at Colonel Curley for asking for your phone records? You shouldn’t be; she’s just doing her job.Instead, you should be angry at the SCOTUS leaker, someone who violated the duties of their job and put you in this awful position. You owe the leaker nothing; if anything, the leaker owes you an apology.
Don’t do anything that gives aid or comfort to the leaker. Don’t do anything that makes it easier for the leaker to hide among the blameless. Instead, do whatever you can to help unmask the leaker—for the Court, and for the country.
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As discussed above regarding what we don’t know, we don’t know exactly what phone records are being sought. For purposes of this discussion, I’m assuming the investigators are seeking only metadata like call logs, showing what numbers you called and when. But even if the investigators want the contents of communications, my analysis remains largely unchanged; you should still cooperate. (And I’m not sure what choice you have if the Court truly insists on cooperation, unless you’re willing to quit or be fired over noncompliance—which I doubt, given the value of the SCOTUS clerkship experience and credential.)
If Colonel Curley seeks the contents of communications, then she might see some potentially embarrassing stuff, like texts between you and your co-clerks blowing off steam by complaining about your justice, or mushy love notes between you and your significant other. I doubt you have “sexts”—the types of folks who clerk for the Court are not the type to send sexts—but if you do, I’m sure you can ask Colonel Curley for permission to redact before turning them over.
I’ve read a fair amount in privacy law, and I’m aware of the responses of scholars like Professor Dan Solove to the “I have nothing to hide” argument. I just don’t find them particularly persuasive (for reasons I won’t go into here, but might share in the future). The reason the “I have nothing to hide” argument resonates with laypeople—as opposed to lawyers and legal scholars, who have a tendency to overthink things—is because it’s true.
I agree with Professor Josh Blackman that the request for phone records is unlikely to produce a smoking gun like direct communications with Josh Gerstein or Alexander Ward of Politico, given the security precautions likely taken by the leaker (e.g., using a tool like Signal that encrypts communications, using a burner phone, etc.). But requesting these records is a standard first step in investigations, it could yield up information that when combined with other data might form a useful mosaic, and it’s not crazy of Colonel Curley to be taking it.