According to sources close to the Supreme Court, some law clerks are considering hiring outside counsel after officials asked for phone records and affidavits as part of the investigation into the leaked draft opinion in the Dobbs v. Women’s Health Organization case on May 2.
Chief John Roberts met with the clerks as a group after the court returned from break, according to CNN, The Guardian reported. It wasn’t clear whether the clerks were also interviewed separately.
An unnamed lawyer who spoke to CNN said that it would be normal procedure for others in a similar situation to the clerks to retain counsel.
“That’s what similarly situated individuals would do in virtually any other government investigation,” the lawyer said. “It would be hypocritical for the supreme court to prevent its own employees from taking advantage of that fundamental legal protection.”
Legal expert Johnathan Turley tweeted that the affidavits may be of particular concern to the clerks, since cell phones might not have been used by the leaker. Lying on an affidavit is a federal crime, however.
The affidavit may be a greater concern for the leaker. After all, the leaker may have avoided using the cellphone or creating digital tracks. The affidavit is a sworn statement to federal investigators. If false, it could constitute a federal crime… https://t.co/uAMrE0R7kS
— Jonathan Turley (@JonathanTurley) May 31, 2022
It is unclear whether any actual laws were broken by the leak itself, but it was a highly unethical act.
Gabe Roth, executive director of the nonpartisan Fix the Court, told VOANews that between 50 and 100 people likely had access to the draft opinion, including 9 justices, 37 clerks, administrative employees, building staff and security guards.
Leaker may not be found
He said it is possible the culprit will never be found. “I don’t know if we’ll ever get to the bottom of who might have leaked the copy to Politico,” he said.
If one of the clerks is responsible, it would likely mean an end to their law career–one that would have held much promise.
The court is putting out all the stops to find out who leaked the opinion, however, because it does not want to see any other leaks happen like this one.
While details about how justices voted or comments they made have been leaked in the past, it is the first time a draft opinion in its entirety was ever leaked from the court.
The leaker may have sought to change the mind of one of the majority justices by causing a public outcry, but sources say that hasn’t happened so far.