The Supreme Court appears to be ratcheting up its investigation into the leaking of the draft opinion in Dobbs v. Jackson Women’s Health Organization. According to CNN, the Court is asking clerks to provide cell phone records and sign affidavits. Some of us have been surprised by Chief Justice John Roberts’ decision not to ask for assistance from the FBI, which is the world’s leading law enforcement agency on computer and forensic investigations. Yet, the affidavits may come with the most worrisome change for the leaker. Once signed, the leaker will reaffirm his or her potential criminal liability.
The cellphone records raise obvious privacy concerns. Communications with Politico or intermediaries can be masked or concealed as casual or personal exchanges. An email entitled “Leaked Confidential Dobbs Draft” is not likely to exist. That means that any meaningful review would require a broader review, creating challenges in how to filter messages and emails.
The affidavit may be a greater concern for the leaker. After all, the leaker may have wisely avoided using the cellphone or creating digital tracks. The affidavit is a sworn statement to federal investigators. If false, it would establish that a federal crime has been committed. Under 18 U.S.C. 1001, it is a federal crime to knowingly and willfully make a materially false, fictitious, or fraudulent statement in any matter within the jurisdiction of the executive, legislative, or judicial branch of the United States. While there were possible criminal claims that could have been brought based on the leak, this makes such criminality clear and undeniable.
That would mean that any doubt would be removed for the leaker. If he or she were to go public or be uncovered in the future, there would be a risk of not simply disbarment but criminal prosecution. The leaker may expect that they will be lionized for this effort in the media, though that is more likely if it was a liberal rather than a conservative leaker. This could frustrate such plans. Frankly, I am surprised that such affidavits were not required in the first week.
Despite claims that the leaker is clearly coming from one side or the other, there are equally plausible theories for a leaker on the right or the left. What is clear is that this was a disgracefully unethical act that shattered the long traditions of the Court. The affidavits will make it more difficult for this individual to later try to capitalize on this wrongful act.
The leaker is likely already known. There’s a staffer whose husband is friend’s with the reporter who leaked the story. That’s your top suspect right there.
And surprise, it’s not a staffer for one of the conservative judges. That theory is bubkis.
There are far more important things in the world than the fact someone leaked this information. But the one issue I see here of concern is privacy. The Supreme Court asking for cell phone records. That’s almost ironic.
GREAT SHOW!!! FIRST TIME CALLER!
In response to the ‘they can’t fire them’ ….’I’d just plead the Fifth… and be home free’ comments…
Keep reading this blog.
Turley is a straight shooter, AND he knows the LAW…
There are many in academia equally versed in the law, but tragically few “straight shooters”. [ My offhand definition being someone who will give the targeting solution, even if the coordinates pinpoint his own territory]
To those who say ‘ you can’t fire them’. Hell, yes you can.
You can fire anybody….anytime…. for any reason!
UNLESS YOU CANT…. Which mostly means either a contractual limitation OR a limitation established via statute (SOMEtimes based upon Constitutional rights).
It’s timely to note that Higher levels of the three branches are generally exempted from such statutes… for reasons both valid.. and convenient.
So, if the Supreme Court asks for affidavits and the scriveners reply “I would prefer not to” then the Court is within its rights, and arguably strongly obliged to provide a cardboard box…. no cake.
I kid because I love. Here are your elders expressing their views and opinions on Ukraine and Putin. Please respect them.
I’m betting an administrative person was involved rather than a leftist law clerk or ckerks. Nobody commits career suicide with such a stupid transparent attempt at influencing decisions. Best way to figure it out is the FBI but who wants that gang of partisans around. Call out DIA or maybe Mossad, both seem to know how to get answers.
Some of the most highly edicated leftists are still complete idiots.
Even Bonhoeffer found the greatest danger to the world was fromt he stupid , not necessarily the malevolent,.
And quite offten the Stupid were also quite intelligent.
As Nasseem Talleb notes – IYI Intellectual yet Idiot.
If they all wear Depend adult diapers, then all of the Justices are leakers.
If there ever was a time when ‘enhanced interrogation techniques’ would get the answer, this is that time.
One of the bigger reasons why the court is asking law clerks for phone records and sign affidavits is a sign that they have not been able to pinpoint the source of the leaks.
These clerks are lawyers themselves, the best of the best. There’s no way they will simply give up their phone records without hiring an outside counsel. They can simply refuse until there’s a warrant or a subpoena for those records. Pleading the 5th is also an option. They can quit and the leaker will never be found.
This is at will employment.
They must do as asked or the can lose their jobs.
I beleive it has been established that this is a crime – that also justifies some of this.
“ I beleive it has been established that this is a crime – that also justifies some of this.”
Nope. This has not been established that this is a crime. Leaking an unclassified document is not a crime.
Just because you want it to be a crime doesn’t make it so.
Leaking an unclassified document is not a violation of the espoionage act.
There are other laws that apply.
There has been legal discussion elsewhere citing atleast 5 different possible laws that could be used to prosecute this.
I think a few are a reach – laws should be read narrowly.
But some apply clearly as written.
I am sure google will point you to the legal discussion.
Is anyone searching Sotomayor’s Uranus? She certainly could have accessed Clarence’s computer, and she certainly she would not be above that sort of thing as she had no qualms about trying to overthrow America.
ROFLMAO
Brava!
😂
Search your own. Maybe you’ll find your head up there.
For him, its way too deep to see, a colonoscopy perhaps….
Anon: You sound like you have lots of experience,
Is anyone searching Ginny Thomas’ cell phones? She certainly could have accessed Clarence’s computer, and she certainly she would not be above that sort of thing as she had no qualms about trying to overthrow the election.
Above it? Ginni was in the heart of it… Roberts is not going to look very hard, if it is her.
Are the Justices also going to have their cell phones and emails searched? I mean, let’s say Clarence Thomas is the leaker – can we agree he should be immediately fired and Biden appoint his replacement?
If so, I am good with that. If not, I would hope their are a bunch of privacy advocates amongst the clerks who will refuse.
“would hope THERE are a bunch”
FTFY
You can’t fire an Associate Justice dimwit . How are you able to dress yourself?
I don’t doubt that there are minefields all over Washington DC that many of us out “out in the field (ie:the rest of the USA)” are unaware of. Especially if you tend to be on the conservative side. If you are going to go slash and burn in an investigation, there is likely too much money to oppose you and set up roadblocks after roadblocks to delay almost forever. On the other hand I would think that a carefully thought out plan of attack and investigation would be paramount before you reveal your direction, using multiple levels of alternate routes and contingency planning. Whose too say that much has not already been investigated and uncovered and this may be the final step or a near final step to eliminate some potential suspects and/or flush the final suspect. It’s almost like epidemiology in many ways except for the political minefields. A very good country lawyer taught me a lot about alternatives in your plan of attack for every step of the way in your campaign. Also this is more like picking a mole out of an intelligence organization than a simple breach of ethics, abhorrent though the breach may be.
We have a murder a week here and smashed out storefronts (where hardly anyone was working anyway), and the lib mayor focuses on how kickass we’re doing at climate change even though there are no meaningful advances toward same literally other than teenagers shilling solar panels door to door (no takers, at least in my district). At this point, I’m satisfied by even small justice and small wins adding up. I guarantee you the bonehead that leaked the SCOTUS opinion was thinking of glory, not ‘positive change’. If it was a younger person, they probably fancied in their ignorance they were following the likes of Snowden or MLK. Irony, logic, common sense, and compassion are lost on the new leftists.
Biden seems more interested in protecting Russia from Ukraine:
Turley leaves out the possibility that none will sign any affidavits. You’re not required to sign one at all. Everyone could invoke the 5th.
Then fire whoever refuses for insubordination; obstruction of justice; or some other justification. Let them sue. They can appeal all the way to the Supreme Court.
Fire them for what? If everyone pleads they 5th. They can’t be fired. There’s no proof of a crime or that anyone did anything if everyone pleads the 5th.
They may never find the leaker. The only reason for having everyone sign an affidavit is so criminal charges can be applied because leaking a Supreme Court opinion is not a crime at all.
Of COURSE, they can be fired. Why would you say otherwise?
Fired for what?
Don’t they all leave in two weeks anyways??
Justice Roberts has to be the weakest Chief Justice in recent history. Clearly he is slow waking the investigation. Had he employed the FBI he would have had his answer in a few days.
Maybe he knows that it’s a sitting Justice and doesn’t want her found out out of fear of what it would do to the reputation of the Court.
All he is doing by protecting her is allowing the “stench” to keep building.
Roberts is just insanely political. Everything he does is for political reasons
Well. “Everyone” won’t refuse to sign. The ones who do refuse have a few more questions to answer.
Perhaps Chief Justice Roberts is aware that the FBI is compromised since its leadership has actively engaged in highly questionable investigative practices.
Indeed JT, the leaker has engaged in a highly unethical act and undermined the USSC. However, given the leftward tip in law schools and some professional associations coupled with with the “I am offend” culture it is unsurprising.
I believe they know who the leaker is but are waiting for passions to die down. I am sure they can not agree what to do.
Chicago land. According to a Chicago police dispatcher, 58 dead, dozens wounded. Happy Holidays.
Indy Bob – Shhhhh, Democrat run, mustn’t mention, can’t attach to white supremacy, AR15, Foxnews or Trump.
Every gun death whether in the streets of Chicago or the classrooms of Texas is a tragedy. The solution to both is the same. I’m from the south so I’m sympathetic to hunters and what not. I’m fine with bolt action rifles and shotguns. But that’s about it. Ban the rest and let the gun fetish freaks loose it. If we gotta fight it out in the streets I say fine- let’s do it and get it over with since it’s been brewing forever. One way or another it’ll all be over soon.
The lack of urgency by Durham, Roberts suggests that being a Washington Bureaucrat involves a nonchalant approach regarding morality, law and order.
Surprised at the leisurely pace of the investigation.
Do they really want to deal with the leader, or is this another Washington “effort”?
Surprised? It’s John Roberts afterall. Adjust your expectations. He’s conducting this leak investigation in the same way he handled the Obama care decision.