Supreme Court Reportedly To Demand Cellphones and Affidavits From Clerks in Leak Investigation

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.


86 thoughts on “Supreme Court Reportedly To Demand Cellphones and Affidavits From Clerks in Leak Investigation”

  1. Dear Mr. Chief Justice:

    CNN reported that, in a speech before the 11th Circuit Judicial Council, you described the leak of a rough draft of Justice Alito’s Dobbs opinion as “absolutely appalling.” But what is more appalling: the fact that we now know that you put rat meat in the sausage, or that there is in fact rat meat in the sausage?

    Your “Court” squandered its legitimacy long before Dobbs. Clarence Thomas shredded his oath, accepted bribes (either directly or laundered through wife Ginni), committed felonies, and decided matters that he had an obvious personal interest in. And you said nothing. But leak a draft proving that your “Court” is a nakedly political institution, and the sky falls down?

    You further expressed hope that “one bad apple” would not change “people’s perception” of the nation’s highest court and workforce. And one bad apple would not. But you have fed us a steady stream of rotten apples over your tenure, as you (and Leonard Leo) have transformed that once-respectable body from a court to an unelected and unaccountable wholly-owned subsidiary of the extreme right wing of the Republican Party.

    The Court’s methodical demolition of the rule of law began in Callender, wherein the Seventh Amendment right to a jury trial–where jurors were final arbiters of both fact AND law—was interred, despite the fact that the Seventh stated plainly that it was to be “preserved.” The Judges’ Bill laid waste to the writ of certiorari (“discretionary cert” is an oxymoron), and the advent of non-precedential opinions freed inferior courts from the burden of precedent. Cf., United States v. Peters, 9 U.S. 121, 126 (1795). And despite the clear delegation of the superintendence of lower courts in Section 1 of Article III, as explained more fully in Justice Wilson’s lectures on the Constitution (he literally wrote the damned thing), you no longer attend to this absolutely crucial duty.

    You don’t do windows … or your jobs.

      1. LOL.

        The comments section here is FULL of comments from ideologues, mostly on the right.

    1. You start off by saying, “CNN reported” enough said, you don’t have to say anymore.

  2. Would not FRCP 53(b) (i) authorize the appointment of a special master by CJ Roberts to take testimony and conduct the necessary electronic discovery of every clerk’s cellphones and computers-both personal and provided by Uncle Sam? Concentrate a good search on emails prior to and at the time of the leak, together with examination of every clerk under oath with a polygraph as back up and the identity of the leaker is establshed either this way of by the leaker confessing in the op ed pages of the NYT and WP.

  3. Okay, serious legal question here: What protections, if any, do court employees have against such demands? Can the Court really just demand everybody turn over their cell phone records because they happen to work there, without even a clear indication that any crime was committed at all? If compelled to make statements, do they get Garrity protection against those statements being used against them criminally?

    1. Re: the phone, it likely depends on whether the phone was issued to them by the government for work purposes (in which case the government owns the phone and can likely demand it at any time) versus it being a personal phone (in which case the government can ask that they turn it over, but absent a warrant cannot do anything if they refuse to turn it over). They cannot be legally required to file an affidavit, though again they can be asked to do so.

    2. Not looking to establish criminality but violation of confidentiality, possibly resulting in disbarment and other non-criminal sanctions.


    The American Founders would like to say a few words on this extraordinary day for justice, or injustice, as the case may be.


    Go ahead, Gentlemen.


    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, 1776

    1. +10

      The lawlessness of democrats including DC juries is dangerous.

      The more lawless we become, the more we can not count on the rule of law the more likely we are to become violent.

      The Revolution was a response to british lawlessness to the excercise of power outside the law – because you have the power. ‘

      And that resulted in the US revolution.

      This jury is just one more straw in the democratic effort to make us all wonder – why the J6 protestors did not come with AR-15’s ?

      1. “ The lawlessness of democrats including DC juries is dangerous.”

        What exactly did the DC jury do that was lawless?

        That’s very strange statement to make.

        1. What have DC juries (and judges) done that is lawless – trivial, not followed the law as written.

          We have a known hoax leading to a criminal investigation of innocent parties
          There is ZERO doubt in the world that is criminal.

          So WHO is it that you wish to convict for that Crime ?


    Great venue if you can get it, right?

    The daughter of one of the jurors was on the same soccer team as Sussmann’s daughter.

    Any impartial, coherent and rational judge who was subject to impeachment would have thrown three jurors off.

    This judge should be impeached, convicted and gibbeted in front of the Supreme Court.

    Isn’t it ironic?

    The branch that judges is totally corrupt, and its Supreme Court can’t even read the 2nd Amendment and explain its clear English language to the President and Congress.

    America is infected by and sick with dark metastasizing cancers.

    Malignant tumors must be excised to save the patient.

    1. Agreed. That was a political packing of a jury. There are two justice systems that democrats have. One for themselves and one for everyone else.

  6. Breaking News: Sussman Found ‘Not Guilty’

    A federal jury found Michael Sussmann, an attorney for Democrats including the Hillary Clinton presidential campaign, not guilty of lying to the FBI when he brought them allegations against Donald Trump during the 2016 presidential race.

    Tuesday’s verdict was a major setback for Special Counsel John Durham, who was appointed during the Trump administration and has spent three years probing whether the federal agents who investigated the 2016 Trump campaign committed wrongdoing.

    The Sussmann jury began deliberating Friday, weighing the testimony of current and former FBI officials, former Clinton campaign advisers, and technology experts. In closing arguments, prosecutors told the jury that Sussmann thought he had “a license to lie” to the FBI at the height of the 2016 presidential campaign. Sussmann’s attorneys countered that the case against their client was built on a “political conspiracy theory.”

    The jury ultimately rejected those claims, apparently swayed by the argument from Sussmann’s attorney, Sean Berkowitz, who said the prosecution was trying to turn a brief 30-minute meeting more than five years ago into a “giant political conspiracy theory.”

    “You can see what the plan was,” Assistant Special Counsel Andrew DeFilippis told jurors in D.C. federal court. “It was to create an October surprise by giving information both to the media and to the FBI to get the media to write that there was an FBI investigation.”

    Despite the trial’s frequent references to Clinton, Trump and other political figures, the prosecutor insisted that “this case is not about politics, it’s not about conspiracy, it’s about the truth.” Sussmann lied, DeFilippis said, because if he’d told the FBI that he was acting on behalf of Clinton, the FBI was less likely to consider his evidence or open an investigation.

    “While we are disappointed in the outcome, we respect the jury’s decision and thank them for their service,” Durham said in a statement. “I also want to recognize and thank the investigators and the prosecution team for their dedicated efforts in seeking truth and justice in this case.”

    Edited From:



    “Despite the trial’s frequent references to Clinton, Trump and other political figures, the prosecutor insisted that “this case is not about politics”.


    Here’s where the prosecution failed: ‘Expecting the jury to think this case was not about politics’.

    One would’ve had to find a jury of Rip Van Winkels who’ve been asleep the last 10 years to make the case this wasn’t about politics. And let’s be honest, after January 6th, trying to paint Donald Trump as a ‘victim’ is simply a bridge too far.

  7. Iowan says:

    “Knowing Roberts, it would be plausible that he gave the Draft to the White House. Now there are an unlimited number of leakers. That would make Roberts the leaker”

    RDS- Roberts Derangement Syndrome-

    I love the Trumpist playbook!

  8. Turley says: “Once signed, the leaker will reaffirm his or her potential criminal liability.” “Reaffirm” WHAT “potential criminal liability’? What law provides that leaking a draft SCOTUS opinion is illegal? If there were such a law, Turley would have cited it, but there isn’t, so this is just another fluff piece for the benefit of the disciples. Turley also bemoans “a disgracefully unethical act that shattered the long traditions of the Court.” What about Gorsuch, Kavanaugh, Alito and Barrett lying about their opinions on Roe just to get onto the SCOTUS so they could reverse it? Lying under oath IS a crime. The draft opinion approved by these four says that Roe was “egregiously wrong”. In their confirmation hearings, none of these 4 ever hinted that this was their opinion. What about reversing a 50 year old case that people have relied upon based upon the flimsy premise that abortion rights are not “deeply rooted” in the Constitution? What about the “long tradition” of respecting stare decisis? What other things are not “deeply rooted” in the Constitution? How about inter-racial marriage, sexual acts between consenting adults done in private that some find offensive, contraception and marriage equality? None of these rights are “deeply rooted” in the Constitution either, and states have previously banned them.

    Another point: i seriously doubt that the leaker left any electronic trail. Anyone savvy enough to appreciate the importance of early release of the draft would also be savvy enough not to leave either a paper or electronic trail. I’d guess that someone took a hard copy, gave it to a Politico reporter who copied it, and then it was returned. And, I do agree that it is a violation of the privacy rights of Court staff to demand their cell phones, mainly because whoever leaked the draft opinion didn’t violate any laws. Therefore, they aren’t under criminal investigation and are not required by law to cooperate. Nor could any Court issue a subpoena to compel production of their cell phone, since there isn’t any underlying crime involved. So, if they didn’t sign away their privacy rights when they took the job, I don’t think the SCOTUS can make them turn over their cell phones. Who’s to say that the leaker didn’t use a burner phone or someone else’s phone, if a cell phone was even used?

  9. The Democrats are in the last throws and the cancer is spreading very quickly. All we as Republicans must do is have patience. At some point, and I believe this will be soon, their disease will finally manifest and it will be all over.

    1. No you’ve got that backwards. The Republican Party has been circling the drain since Bush 2 put two wars on the credit card, oversaw the greatest expansion of the fed gov since FDR, and then crashed the economy into the sewer. That put the lie to most of the Republican agenda- small govt, muscular foreign policy, supply side economics- all proven to be utter falsehoods. It’s why all the Republican Party has left is race grievance, conspiracy theories and various species of religious lunacy. You’ve lost the popular vote in every election but 1 since 92, have no policy which polls better than 30% and your leaders are a motley crew of unreconstructed garbage-pail hillbillies, sex offenders, Russian assets, effete Yale and Harvard legacy silver-spooners, and a smattering of god-bothering losers. You’re right that it’ll eventually all be over, though. Eventually this long national fever will break and the US will proudly join the rest of the first world in peace and prosperity. Conservatives can either be part of the problem part of the solution or just part of the landscape- your choice but I warn you not to stand in the way of progress. Those that do often find themselves laughingstocks. Or worse.

  10. Turley– “Some of us have been surprised by Chief Justice John Roberts’ decision not to ask for assistance from the FBI, ”

    I wasn’t. I said here that the corrupt FBI should not be involved.

    Even if the FBI conducted an honest investigation many would be skeptical of the results because the FBI has lost its credibility. Who wants another Epstein ‘suicide’ type investigation or another Richard Jewell scapegoat? Maybe Roberts thinks the same.

    The US Marshals still seem legit. Maybe they could help. But I don’t see a problem with having employees say whether or not they were responsible for the leak or if they knew who was responsible. It was an outrageous act that cannot be tolerated. It has further damaged the rotting reputation of the entire Court and that damages the entire country, yet another once hallowed institution seeming to collapse like one of the twin towers.

    Are any of the clerks Yale graduates? I would look first at them. Yale law school seems to have gone nuts.

  11. “decision not to ask for assistance from the FBI”…..Duh! The FBI is a treasonous, corrupt, broken institution. Who would want them to be involved? Undoubtedly, this is a Dimunist leak and getting the FBI involved would only result in sweeping the crime under the carpet.

  12. In 1989, I was just an intern at the Court. I didn’t have anything to do with cases before the Court. I remember signing something like a non-disclosure agreement, and that if I ever wrote about my time at the Court, I had to submit to the Court for review by someone before I published it. I don’t know if that is still done or not. Also, I don’t know if clerks signed anything at all.
    I don’t recall recall any specific recourse being in the document I signed if I breached its terms. But being an intern right out of college, I knew not to talk about any Court business.

    1. Good question. What happens if you brea the agreement? WIthout any other language, it would be money damages, but the amount would be hard to ascertain.

      1. Yes, ascertaining damages for a breach like that would be difficult. When I practiced law I usually saw essentially a liquidated damages clause with a certain amount stated. In this case I don’t know what they do. It may be clerks don’t even sign anything. I have no idea how you would figure damages in this debacle. I guess that is the reason they are asking for affidavits. If you lie, now criminal law is in play. Back in 1989 no one would even think about leaking the lunch menu, let alone a draft opinion.

  13. Knowing Roberts, it would be plausible that he gave the Draft to the White House. Now there are an unlimited number of leakers. That would make Roberts the leaker

  14. The leak was made in The Hill or in Politico–I don’t remember–I don’t read either. Republicans/Conservatives don’t leak to The Hill or to Politico.

  15. The leak was made in The Hill or in Politico–I don’t remember–I don’t read either. Republicans/Conservatives don’t leak to The Hill or to Politico.

    1. Respectively disagree if you are talking about deliberations and opinion writing. Oral arguments are open to the public. The court should not be influenced by the views of the public or threat of harm or harassment by anyone. That is what the other 2 branches are for. This would be akin of non-expert members of the public wanting to go to the CDC or FDA and comment on what they think they saw. Much of what congress does is often not available to the public depending on the nature of an investigation or what is discussed in a committee hearing. You usually get final reports. But that is what an opinion of the court is.

      1. This would be akin of non-expert members of the public wanting to go to the CDC or FDA and comment on what they think they saw.

        Like the CDC following he recommendation of the teachers unions? Or a judge asking for friend of court briefs in a criminal trial.

    2. David B Benson – you are right, the public ought to be informed and I need the citations you owe me. You are 256 weeks behind.

    3. Fine, then change the constitution, change th law, change the rules.

      In the meantime violating the rules that exist – even if you do not like them is immoral and unethical.

      I do think that the deliberations of the court, the drafts, the work of judges and their clerks should be secret as should the deliberation of juries.

      But I would fully support cameras and recording devices int he court room.

      That doesnot mean I would sneak my cell phone into court, record events and not expect to be prosecuted when caught.

      Change the law if you do not like it.

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