As Supreme Court officials continue to escalate their search for the source of early May’s leak of a Supreme Court draft opinion that would see the end of legacy decision Roe v. Wade, those officials have reportedly taken steps to require the court’s law clerks to provide cell phone records and sign affidavits.
Three individuals with knowledge of these efforts told CNN that some clerks have become "so alarmed" over the actions, that they have begun considering whether to hire outside counsel.
The actions are the most striking development to date in the investigation into who may have leaked the draft opinion document, written by Justice Samuel Alito, to Politico, which published it on May 2. The opinion indicated that a majority of the court was poised to overturn Roe v Wade.
CNN reported that Chief Justice John Roberts met with the law clerks as a group following the breach, but it remains unclear whether individual interviews have been conducted.
Lawyers outside of the court warn that potential inquiries into phone records may be intrusive to clerks’ personal activities outside of the disclosure to media, "and say they may feel the need to obtain independent counsel," CNN reported.
"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 regarding the law clerks. "It would be hypocritical for the Supreme Court to prevent its own employees from taking advantage of that fundamental legal protection."
Sources familiar with the matter say that the exact language of the affidavits or the time period covered or content sought in the phone records search remains unclear.
CNN reported: "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."
On May 3, Roberts ordered an investigation into the source of the leak, with the court’s marshal, Gail Curley, leading the probe.
Curley, a former Army colonel and lawyer, oversees the police officers within the Court’s building. Her office would not normally engage in such a large-scale investigation of personnel.
The investigation comes during the busiest time of the Court’s term, where justices are looking to complete cases by their late June deadlines.
While the clerks are being scrutinized over whether one of them leaked the document, they are not the only ones with access to the material.
According to CNN, Alito’s February 10 draft would have been circulated to the nine justices, their clerks, with each justice typically hiring four, as well as key staffers within the justices’ chambers and select administrative offices.
Copies are typically sent electronically, as well as in person, printed out and hand delivered by aides to the marshal.
An untold number of other employees connected to the justices chambers would have had some access to the opinion as well.
According to CNN, former law clerks say that the document could have been sent to up to 75 people in total.
Court opinions are usually circulated on a closed system, which is separate from the computer system the justices and court employees use to communicate with people outside the court, though it is possible for copies of the document to leave the building in printed form as work is taken home.