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Lawyer up and don’t cooperate


John Roberts is on the warpath over the leaks coming from the Court, or at least one of the leaks:

According to a CNN report, the court’s leak investigators are “taking steps to require law clerks to provide cell phone records and sign affidavits.” Understandably, “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.”

That answer should be yes. Clerks should absolutely hire counsel to advise them about their rights and recourse if they refuse to provide the requested information. And while the court is not, so far as we know, conducting a criminal investigation, the demand that clerks sign a statement under penalty of perjury can put them at risk if they are anything less than 100 percent truthful.

While the court is entitled to “examine any government-owned cell phones or e-mail accounts,” prominent whistleblower attorney Mark S. Zaid tells me, “there would be no legal right (absent a warrant) that would … compel a clerk to turn over any personally owned information.” Zaid recommends that “as many clerks and staff as possible decline as a group to turn over their personal data,” to create “safety in numbers.”

Leah Litman, University of Michigan law professor and co-host of the podcast Strict Scrutiny, finds the court’s conduct outrageous. “It’s insanity. Say no,” she tells the clerks. “Get a lawyer; try to talk to your justice about how insane it is for the federal government to say to an employee, ‘Hand over your personal phone so we can investigate these leaks,’ when some of the justices themselves are going on record, with the press, to speak about the inner workings of the court.”

This unprecedented, unseemly dragnet suggests that the justices have no idea how much danger their crumbling reputations are in. (Their arrogance and overt partisanship already have become the best argument possible for term limits for justices.) If the justices need such heavy-handed tactics and cannot rely on the word of their clerks, the Supreme Court has become just another D.C. workplace roiled in political finger-pointing and blame-casting. Yes, the scandal of the leak undermined the credibility of the court, but a ham-fisted attempt to rectify it will only make things worse.

Litman’s advice seems obviously correct to me — say nothing and don’t turn anything over that you’re not obligated to. It should also be noted that a serious investigation would consider the possibility that the Wall Street Journal op-ed page knows so much about what the conservative chambers are thinking for the same reason The Brethren portrayed Potter Stewart as the wisest judge in known human history.

As I’ve said before, the Court has been able to do an incredible job of selling the idea that the opacity that is in their interest is actually in the public interest. The month in which they’re going to overrule Roe and amplify the gun violence epidemic is a good time to remind people that the interests of the Court and the public are more likely to be opposed than in sync.

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