toobin new day 05 31 2022
CNN Supreme Court analyst: Investigation into Roe v. Wade leak is 'an aggressive move'
02:55 - Source: CNN
CNN  — 

In most other pockets of the federal government, a public employee’s decision to lawyer up in the face of an internal investigation would be a no-brainer. But for Supreme Court clerks now being asked to cooperate with new steps in the court’s leak probe, such a move could upend the trajectories of their careers.

Legal experts have said that the disclosure to Politico of a draft Supreme Court opinion ending the right to an abortion is likely not, by itself, a crime. But clerks now are in a precarious position with the move – as reported exclusively by CNN Tuesday – by court officials tasked with leading the investigation to ask that they turn over private phone data and sign affidavits. A clerk may potentially be viewed with suspicion if they hesitate to cooperate or seek outside counsel before participating.

“The clerks are probably the most vulnerable workers who had access to that information in the building, because their career could be dramatically affected by how they chose to respond,” Catherine Fisk, a professor of employment law at UC Berkeley School of Law, told CNN. The basic act of lawyering up could create an inference of guilt “is certainly a fear that they would have.”

RELATED: Behind the scenes at the secretive Supreme Court

The young lawyers who spend a year clerking for the Supreme Court are often regarded as some of the brightest legal minds in the country. The job they take on – which involves intense secrecy and crushing hours – is one of the most coveted. Along with a close view of how judicial decisions are made at the highest level, it comes the promise of an ultra-prestigious professional launchpad and even six-figure bonuses from the firms that will go on to hire them.

But those perks bring unique expectations for Supreme Court clerks, according to Harvard Law professor Laurence Tribe, who clerked for former Justice Potter Stewart and has recommended clerks to justices.

“I think it would be entirely appropriate for any law clerk who lawyers up and tells the chief justice or the Marshal of the Court, ‘No, I won’t let you see my cell phone records. They’re too intimate and too private,’ will need to take the consequence,” Tribe said. “And I think those consequences should include losing their job and losing the CV value, the resume value that job would otherwise have going forward.”

Tribe added that it would be reasonable for clerks to have outside counsel review the requests before complying, but he said that hiring a lawyer to represent them “against” the court officials leading the probe would be “ill advised.”

“These clerks are in a no-win position right now,” said Liz Hempowicz, the director of public policy at the government watchdog group Project On Government Oversight, who added it would be “incredibly alarming” if Supreme Court officials viewed a clerk’s retention of an attorney as an indicator of guilt.

“What lawyer would advise anyone to hand over personal information like this and cell phone records like this without the advice of an attorney?” Hempowicz told CNN.

The justices themselves, whom Fisk noted could have also been the source of the leak, “have no pressure on them that they can’t withstand,” given the lifetime tenure of their jobs.

“There is not a thing their colleagues can do to them to force them to hand over their cell phone,” Fisk said.

The leak investigation – which is being led by the Marshal of the US Supreme Court at the request of Chief Justice John Roberts – has taken an aggressive step with the request for clerks’ private phone records. That, along with any requirement that clerks sign affidavits, could give clerks pause even if they had nothing to do with the Politico leak or disclosures to various other media outlets that have reported on the secretive negotiations the abortion case, which will be decided in the coming weeks.

By signing an affidavit, if what they sign isn’t true, clerks open up themselves to criminal liability that likely isn’t present by simply leaking the opinion draft. That is because false statements to government investigators – including in written statements – is a federal crime that carries up to five years in prison.

Clerks will also have to consider potential legal risks that come with their cooperation with the phone records requests – risks that could depend on how broadly or limited the scope of the phone record review is defined. Will investigators be able to scoop up data about clerk conduct not related to the leak? Could that data be used against the clerks in a criminal context, or even to justify disciplinary action against them?

“Or it could include information about a friend or family member of a clerk who is engaged in conduct that is unlawful,” Fisk said, noting that in criminal investigations, such information is often used as leverage to get information investigators really want.

Then there’s the possibility of investigation picking up sensitive conversations clerks had about other justices or other clerks – with the potential of further inflaming tensions at time when trust within the Supreme Court’s walls has bottomed out.

Repercussions for not cooperating

As at-will employees, the clerks could potentially face termination if they resist participation in the probe.

A request for an affidavit “is likely a legitimate exercise of SCOTUS employment authority,” said Mark Zaid, an attorney who has represented government whistleblowers.

The legal lines for the right to privacy they – as public employees – are entitled to are not fully settled, according to employment law professor Orly Lobel, who is the director of the Center of Employment and Labor Policy at the University of San Diego, and ironically, the general boundaries that do exist have been drawn by the Supreme Court in its opinions.

Even if the Supreme Court has no legal right, absent a warrant, to compel the clerks to share their personal data, “the optics of declining to do so could create an adverse inference that the individual has something to hide even though the decision could rightly be one based on principle alone,” Zaid told CNN via email.

Legal experts noted the possibility that the clerks signed employment agreements at the beginning of their clerkships that would effectively waive their right to privacy in this context.

The Supreme Court didn’t respond a CNN inquiry about what employment agreements – if any – were signed by clerks that would touch on an obligation to turn over their phone data.

Ultimately, it may be up to the individual justice for whom the clerk works to determine what kind pressure the clerk feels to participate, given that the justice may be the arbiter of not just the clerk’s current employment, but what kind of jobs the clerk gets recommended for in the future.

“A lot of this is very, very intrusive into how a justice’s chambers works and so I could see the clerks not wanting to go along with it,” Adam Augustine Carter, a principal at The Employment Law Group, P.C. in Washington, DC, told CNN. “On the other hand the associate justices are going to be under pressure from the Chief justice, who launched the investigation, and the Marshal, to cooperate, and if you don’t cooperate you are going to look suspicious. Sadly when you lawyer up, you’re going to look suspicious for that as well.”

This complex backdrop is why several legal experts said that perhaps the safest route for clerks would be a strength-in-numbers approach that would protect them from the suspicions arisen by their individual decisions.

“It will be easier if clerks as a group say, graciously, ‘I have nothing to hide, but nevertheless I am lawyer. I am not going to allow you to conduct a search into my private life without consulting counsel,’” Fisk said.

Tribe was skeptical such an approach would fly within the unique culture of the Supreme Court.

“It would be almost as though the law clerks, as a group, would be sort of pitting themselves against the court as an institution and that would undermine internal trust to an even greater degree,” he said.