We're back sooner than expected to talk about the Court's release of the Marshal's report about the investigation of the Dobbs leak!
We're back sooner than expected to talk about the Court's release of the Marshal's report about the investigation of the Dobbs leak!
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, I think we had to schedule an emergency episode in order to go a little deeper into Star Wars.
Will: [laughs] Our excursion into the expanded universe last episode has gotten us a lot of feedback, some negative, some positive. Maybe a generational aspect there, I think.
Dan: A distinguished Supreme Court litigator wrote to say, "Less Star Wars, more law." I don't know, fast forward button exists for a reason. Sometimes we're going to go off-topic and that's fun.
Will: I have fun.
Dan: Yeah. No, that's not actually why we're having-- Is this an emergency episode? Maybe it's not an emergency episode because we didn't stay up late last night to record it, but this is a kind of quick turnaround episode.
Will: I would call it an unscheduled episode, but all of our episodes are unscheduled.
Dan: Yeah, that's the whole point. But it is an episode that's going to come out like a week after our last one, which is good for us. That's because we want to talk about this report that the Supreme Court issued about the leak investigation, or lack thereof, as we'll discuss.
Will: Yes. This document is available in the Press Releases section of the Supreme Court website.
Dan: Which is not a very busy section of the website. The Court does not do a lot to tell us through press releases what they're up to.
Will: It might be the most interesting thing I've ever downloaded from the Press Releases section of the Supreme Court website.
Dan: Yeah, the thing about closing the front door that was in the Press Releases section, this was like ten years ago.
Will: I remember that. I think-- [crosstalk]
Dan: There was like a dissent.
Will: It was my year, I think, so I don't remember where it was on the website.
Dan: Yeah. So, this is an interesting document.
Will: Yeah. Well, so there are three documents. Could you do this from the level of typefaces first? [laughter] There are three documents.
Dan: Yeah.
Will: One document, the first document, written and formatted like a Supreme Court opinion.
Dan: Yes.
Will: In Supreme Court style.
Dan: It's a statement of the Court.
Will: Statement of the Court concerning the leaked investigation, and it's written like a per curiam opinion.
Dan: Yeah.
Will: Only, it's just like it's a statement.
Dan: And it's not clear-- I mean, I assume because it's a statement of the Court, all of the Justices must have signed onto it in some form. I assume that this was written by the Chief Justice at the outset. That seems pretty logical.
Will: It has the chief feel to it.
Dan: Yeah.
Will: And again, I think a per curiam opinion could well be drafted by the Chief Justice. So, I think-- [crosstalk]
Dan: That's not true as a general matter though. Per curiams are often drafted by other members of the court.
Will: Right, it could be. It was just [crosstalk]
Dan: But in this case, this is like an institutional kind of statement.
Will: Yes. I assume that in other per curiam opinions, it doesn't necessarily mean everybody literally signed on to it, but people would have had the opportunity to sign or to not sign on to it. It would be weird to issue it if not everybody signed onto it. But I don't know that every sentence is joined by nine Justices.
Dan: Yeah. I mean, do we think this was circulated like-- [crosstalk]
Will: I'm sure it was circulated.
Dan: So, that's the first two pages.
Will: Then the next page is a document from The Chertoff Group on their letterhead statement from Michael Chertoff.
Dan: With their pretty ugly sans-serif font.
Will: Uh-huh, and their address at the bottom. After that comes a 19-page document from Office of the Marshal Record of the United States written in double-spaced, nonjustified-- [crosstalk]
Dan: 20, 20 pages.
Will: 20 pages, yeah. That's the Marshal's own report. So, it's just-- [crosstalk] a statement of that -- [crosstalk]
Dan: Can we talk about justification?
Will: Uh-huh.
Dan: A little bit? As a reader and as an appellate litigator, I think most documents should be justified with hyphenation the way that Supreme Court opinions are and the way that most books people read are. So, this is-- they have, like, a whole office at the court that's about formatting documents. I think they could have done better here. That's not really what people want to hear about though.
Will: Probably not. I do have lots of uses for typefaces, but okay.
Dan: I think we probably agree a fair bit on that--[crosstalk]
Will: Do you read Butterick?
Dan: Read what?
Will: Butterick.
Dan: I mean, is that a font?
Will: No, that's a person.
Dan: Okay. Now, who is Butterick?
Will: Very important book. Matthew Butterick, Typefaces for Lawyers. It's available for free online-- [crosstalk]
Dan: Oh, I think I've seen that. I've seen that, but I haven't read it.
Will: Every law student should own this book.
Dan: They won't. I learned something recently that disturbed me though. As you know, going through the final editing process with the Yale Law Journal on my and Danielle's piece about the Fourth Amendment, and that's been extremely good process. I really like [crosstalk]
Will: Nice named document.
Dan: -with you and that's been great that they give a lot of good feedback and it's a process that lets the author continue to have a lot of control. But I learned that Yale Law Journal uses hyphens and em dashes for page ranges.
Will: That actually doesn't bother me.
Dan: Okay, you're not a conservative on-- [crosstalk]
Will: I know it's supposed to be for em dashes but I often think the hyphens look better, to be honest.
Dan: Well, that's what I'd expect from a-- what are you, the chairman of the board of the Yale Law Journal Association?
Will: I'm the president of the board of Directors of the Yale Law Journal [crosstalk] Corporation.
Dan: Okay, everybody's on the same page on Team Yale. I'm a Harvard partisan. We care about such things. But I guess we should talk about the substance.
Will: Yeah. Okay, so who did it, Dan?
Dan: The Marshal and a team, the Marshal's team. I was confused about this. I'm going to the Marshal's report of findings and recommendation. It says, "The Marshal, in consultation with close advisors at the court, developed an investigative plan of action. Investigators followed that plan, documented the course of their investigation, and reported the results. Section 2 of this report captures the material findings and recommendations. The investigative team consists of seasoned attorneys and trained federal investigators with substantial experience conducting criminal, administrative, and cyber investigations."
Will: Yeah.
Dan: It made me think of the cyber age. Justice Kennedy's famous and favorite phrase to describe, I guess, what we might call the information age. But this was interesting to me. The investigation, do you think that is describing just employees of the court, like people in the IT and like Marshal's office? Or do you think they brought in outside people, like these folks with substantial experience conducting criminal, administrative, and cyber investigations? Are those people in the Supreme Court Police Department?
Will: Yeah, I think it's possible that the team includes some people who are not employees of the court, although I'm not sure that is one of the many things-- [crosstalk].
Dan: There's a lot that's kind of unanswered here. The court did go and get an analysis by the Chertoff Group, which is this former Homeland Security Director Michael Chertoff, former Third Circuit Judge kind of consulting group on cybersecurity and stuff like that. But that seemed to happen after the fact. They presumably could have gone outside the building to hire someone to conduct the investigation. Should not be crazy. But they didn't do that, they just sort of on the backend, they said, "Hey, can you just double-check and make sure the Marshals did everything good," Chertoff said.
Will: Yes, right. At a high level, that's how I read this as saying the Marshal did the internal investigation. It didn't ultimately turn up. At least didn't turn up as a person they're willing to name beyond a product of the evidence. You can imagine you learn that and you think, "Okay, was that a good enough investigation?" Or as people on the internet have been saying, "Is this something that is beyond the Marshal's expertise, so it should we do more?" And so, you go to the Chertoff Group who you presumably could hire to do more, and you ask them, "Should we hire you to do more?" I take it they say essentially no, not to do anything that you didn't already do.
Dan: Yeah, or maybe they weren't asking them if they should hire them, but just sort of saying, "Can you give us a yes or no on whether--?"
Will: We should hire some--? But I think the question is, are there reasonable steps we should take that haven't been taken? And the answer is no.
Dan: Yeah, cut to the chase and then we'll kind of walk through it a little bit more. Did we find the leaker?
Will: No.
Dan: Okay. We did not successfully find the leaker, although we don't know whether the court identified like one person they think quite likely did it, but couldn't pin it on them. If you look at the second page of the Marshal's report, says "Despite these efforts-" after describing everything that they did interviews, looking at the text logs, looking at IT records, "-investigators have been unable to determine at this time using a preponderance of the evidence standard, the identity of the person-" and then as in parentheses, "-who disclosed the draft majority opinion in Dobbs v. Jackson Women's Health Organization or how the draft opinion was provided to Politico." Not able to determine using a preponderance of the evidence standard.
Will: Right.
Dan: So, maybe they have very strong suspicions but they can't quite--
Will: It could be. I'm not saying this is true, but I imagine that they concluded actually they were certain that they knew which chambers the leak came from. I imagine. Everybody has their suspicions about which chambers. But imagine that they just really couldn't get anything useful on who in the chambers it was. And then, there are six or seven possibilities that on the one hand would be an important finding, but on the other hand, they could say, "Punitive evidence we can't tell, in essence, the committee, 12% chance of any one of them," or something.
Dan: And it's interesting. A week ago, we're recording on January 20th, on January 13th, in The Wall Street Journal, Jess Bravin and Sadie Gurman released a story saying that the investigators have narrowed their inquiry to a small number of suspects, including law clerks. So, maybe there was some kind of a shortlist.
Will: Yeah. What I can't tell-- we know there's an appendix to this document about things the court should do to change. How to change infosec, things that's not released public. Do you think there's also-- if they have a shortlist, do you think the court knows who's on the shortlist? Like is there some document where the Marshal said, "By the way, it was the X chambers?"
Dan: Who wouldn't-- I mean, why wouldn't they? I mean, do you think the Marshal would keep it secret and not tell the Chief Justice?
Will: I don't know. I mean, so there is this document we have [chuckles] that's publicly-- and then, I just-- I couldn't-- because you might still think I mean, for all the reasons that they don't want to name the chamber or name these hypothetical suspects to us because it'll sort of cast a cloud on them-- [crosstalk]
Dan: [crosstalk] the bad.
Will: I mean, if the Marshal said to the Chief Justice, "Look, we have narrowed it down to one chamber but we don't know who did it in that chamber. I'm not going to tell you who it was unless you make me," you can imagine the chief saying, "Well, that's all it is-- [crosstalk]
Dan: I guess I am skeptical that the Marshal had that level of independence. I think that the Marshal, the clerk, these people really work for the court. I think that they took very clear marching orders from the court and probably from the chief here. Especially given that they didn't tell us, I don't know what the Justices would gain from having this strict separation of functions inside the building.
Will: Yeah. What the Justices could gain, it would be again-- in some sense, there's always this question about and question with the report generally is like what helps build trust and legitimacy at the court, which is presumably the thing they-- [crosstalk]
Dan: But they didn't tell us that. If they had told us in the report that, "We observed these very strict precautions," then maybe that would be worse than that. But they didn't say that, so in that case--
Will: Right, fair enough.
Dan: Yeah, so, I mean, it certainly seems plausible that they, there were some people that they were able to rule out more than others. I know that the report also says there were cases where they held multiple interviews with certain employees based on forensic information from a review of the IT systems. We don't exactly know what that was. Maybe there was indication someone printed it or looked at the file more than other people. So, maybe those people were the shortlisters at the end of the day. Maybe not.
Will: Right, yeah. No, obviously, I don't know whether we're going to go into the details. We know that a few people, some people, it's a little vague about how many admitted that they, contrary to Supreme Court policies, had talked to their spouses about the case, which I don't find totally surprising, but find it a little interesting that people admitted that and so heartening.
Dan: Yeah.
Will: So, you can imagine that maybe they investigated those people more carefully because you know-- okay. There's a lot.
Dan: Yeah. And my guess is that's the kind of thing where some people might have done it and not admitted it. People were asked to submit affidavits, saying under a penalty of perjury that they didn't disclose the draft opinion.
Will: And I think everybody was asked to agree to do it.
Dan: Yes.
Will: That was what we talked about is sort of cooperation question. And it sounds like both on the affidavit, turning over their various phone-related documents, everybody agreed to do it.
Dan: Yeah, now on that point, on the phone, it's a little unclear what happened there. It seems like some employees have their own court-provided device. We didn't have that when I was clerking, but I guess they've given the people iPhones or something so that they can access court email outside of the building, which makes a certain amount of sense. And so, they've reviewed those and then it said, "Court historically has not issued mobile phones to all employees. All employees who were requested to do so voluntarily provided call and text detail records and billing statements for their personal devices for a defined period to the best of their abilities. The investigators reviewed the call and text logs retrieved, but found nothing relevant in the limited logs." I don't really know what that means. So, call records, I mean, that's just who you called, right?
Will: Right.
Dan: Text detail records. I don't really know what that means. I don't know if that means the actual contents of text messages or just information about who was texted.
Will: I agree. I don't know either. And I don't know if you used an app. A secure app. I assume that would not be included.
Dan: Yeah. And presumably, someone had used, say, Signal, if they had just deleted that app off of their phone, that would have caused all the records of who they had communicated with to vanish.
Will: Even if it didn't delete it from their phone, it's not even clear they were looking on the phone.
Dan: Yeah. So, we get another ambiguity here.
Will: Yeah, one related ambiguity is it says there that they all voluntarily provided these call and detail records, but it says at the beginning that everybody was warned that they could be fired if they didn't cooperate.
Dan: Yeah-- [crosstalk]
Will: And that therefore, this triggered Garrity and none of the information they provided could be used against them in a criminal case. So, it's not that voluntary. [chuckles]
Dan: Yeah. Which page is that on?
Will: It's on page 13 to 14, where they describe the interviews, is where they say that they conducted 126 formal interviews. At the initial interviews, they informed all witnesses that they had a duty to answer questions about their conduct as employees with disciplinary action, including dismissal, could be undertaken if they refused, that the answers provided could be used in the course of civil proceedings, but could not be used against them in any criminal proceedings.
Dan: Unless they knowingly and willfully provided false statements.
Will: Right. Because then, the statement itself is a crime. That last proviso is required by a Supreme Court case I think we talked about before that says that when you tell a government employee, you have to tell me or else, you'd be fired, that counts as compulsion for self-incrimination purposes. I guess this is in the interview section rather than in the forensics section, but I assume that the whole thing applies there.
Dan: Yeah. Although I don't know, being forced to turn over a device would not count as compulsion for purposes of the Fifth Amendment privilege unless the act of producing itself was testimonial.
Will: That's true.
Dan: But the contents would not be like-- responding to a subpoena is not a violation. Being forced to subpoena does not implicate your Fifth Amendment privilege unless the act of producing whatever you turn over is itself testimony, acknowledging that you possess something.
Will: Right. Although they do-- Yeah, maybe, and actually what it says here and it's hard to know how carefully things are written, but, "Such information and evidence cannot be used against them." Such information and evidence is any information or evidence resulting from their answers. Maybe their call logs could be used against them in a criminal case, because-- I mean I don't know that--
Dan: But it is also unclear whether the mere leak was itself a crime. In the report, there's a little section, this is on pages 8 to 9, where it says, "The following federal statutes are potentially relevant to the investigation." It lays out the general federal conspiracy statute. It lays out the statute saying, "Courts have the power to punish contempt and obstruction of Justice.18 USC 641 prohibits the disposition without authority of any record or thing of value in United States." Not obvious to me that applies. Not obvious to me that it doesn't, but it might."18 USC 1030 prohibits intentionally accessing a computer without authorization or exceeding authorized access." I think that one probably doesn't apply if we assume the conventional narrative, which is that someone had accessed the opinion and just took it out of the building. They didn't hack. "18 USC 1503 prohibits corruptly endeavoring to influence, intimidate, or impede any officer in or of any court of the United States in the discharge of his duty." Not persuaded that would apply here to leaking something.
Will: It definitely could apply depending on the motivations, which we don't know. I mean I think it depends-- [crosstalk] If you leaked it--
Dan: [crosstalk] means?
Will: Yeah. But I think if you leaked it with the goal of trying to trigger a mob of people to threaten one of the Justices that result in them either flipping their vote or not flipping their vote--
Dan: Maybe or maybe that would apply only to certain kinds of physical or financial threats. It's just not clear to me. Could be I just would need to think more about the statute and look at cases interpreting it and so forth.
Will: Yeah, fine.
Dan: "18 USC1905 prohibits disclosure by federal government employees of information that comes to them in the course of their employment that is known by them to be confidential, including the identity of any person." That identity part doesn't quite seem relevant to me because I assume that's more about the identity of confidential.
Will: Well but the identity of the people who have joined the opinion might.
Dan: That's a little bit different. That would suggest any information released talking about any person who did anything would fall into this. I'm not sure if that's right.
Will: I'm not sure it is either, but I assume that's what they have in mind.
Dan: Anyways, but the report does not take a stand. It just says these might be relevant. It also notes that there's been some bills introduced in Congress that would have more clearly criminalized a leak like this. Then, of course, it says 18 USC Section 1001 was important because everybody involved signed these affidavits under penalty of perjury. Then, as I understand it, at that point, if you lied doing that, then you've now committed a new federal crime.
Will: Yes. It looks like, by the way, the affidavits required people both to say they didn't do it and they didn't know who did. You could imagine that some people know who did.
Dan: But there's something interesting on page 15. It says, "The interviews provided very few leads concerning who may have publicly disclosed the document. Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved."
Will: Yeah.
Dan: So, it sounds like they asked a bunch of people, you know "Did you do it? Do you know who did it? Do you have any thoughts on who did it?" Many people were unwilling to even say it. "Yeah, I think it was Dave and this other chambers who might have done it."
Will: "Justice So and So in this the other chambers."
Dan: Yeah. Okay. That opens the door to something that I think we should talk about, right?
Will: Go ahead. [chuckles]
Dan: This is something. I'm quoted in the Washington Post today on this. The odd thing about this document is it does not seem to even contemplate or imagine the possibility that one of the people who disclosed it was a Justice of the Court. You and I had a little bit of a back-and-forth on Twitter about this, but I think if you read the whole thing in context, it indicates that there was extensive investigation of employees. But as I read it, that did not include Justices.
Will: I think that's right. I will say, I think if the Justices were investigated, I could well imagine you would not say that explicitly. I could well imagine that the Justices could be--
Dan: But why?
Will: Well, because the Justices could feel sensitive about that, or because they could characterize the conversation of the Justices in an ambiguous way. But I think it's right, given that they say in the discussion of interviews that everybody was warned they could be fired for refusing to cooperate. They had a duty to answer questions.
Dan: Yeah. And there's other stuff, language in the human resources manual that seems to distinguish between employees and officers of the court, various times where it talks about all employees in ways that clearly couldn't include the Justices.
Will: Right, but there are also places where it says employees and personnel. It's possible if that's just elegant variation because they don't want to say employees over and over again, but it's possible there's a category of personnel that includes Justices and employees. But I do notice when they list various rules that are relevant, one of them is the code of conduct for US judges.
Dan: Yeah. But what it's quoting there in part is, "A judge should require similar restraint by court personnel subject to the judge's direction and control."
Will: Yeah.
Dan: Again, it seems like--
Will: It has two statements, right? One is the judge shouldn't make public comment on the merits of a pending matter and the judge should require their personnel to do it, which I take it as relevant to the question of "Did a judge leak it? Did a judge let one of their employees leak it?"
Dan: Yeah. So, I agree it doesn't have anything that says we didn't talk to Justice about doing it. I do think the slightly better reading of it is that they were not part of the investigation.
Will: I agree it's a better reading. I just think it's--
Dan: That's all I wanted from you.
Will: I think it's a better reading. I'm still-- by a preponderance of the evidence, I'll give you the better reading. I actually wonder what will happen next. One thing that-- we can come back to Justice in a sec, but one thing the report says at the beginning is the kind of, "We still have a few outstanding leads and a few outstanding things to do. We'll let you know if those change."
Dan: Yeah.
Will: It wouldn't be crazy for one of those few outstanding things to do to be for the Marshal to at least go ask the Justices, "Did you do it? Do you know who did it?"
Dan: Yeah, but maybe they didn't. It seems like if they did, it would have been better to at least more subtly indicate that they had. Because my claim was that it's hard to take the investigation seriously if they didn't actually consider that possibility, which strikes me as maybe it's the most plausible, maybe it's not the most plausible, but at least it's within the realm of possibility that it was a Justice, right?-- [crosstalk]
Will: Yeah, but why does that mean we can't take the investigation seriously? I mean, suppose we thought there were four major possibilities and we carefully investigated three of them, you can still take it seriously.
Dan: It’s not a serious investigation if there's a major category of suspects that you just declare out at the outset couldn't possibly be within the scope of your investigation. That's not a serious investigation.
Will: Maybe it's serious-- I mean, this is how it's being reported on Twitter.
Dan: Would you describe a-- [crosstalk]
Will: Maybe it's a serious investment investigation.
Dan: -a murder investigation where they just say at the outset, "We're not going to investigate the victim's spouse."
Will: Well, I guess what I mean to say is maybe this really incriminates the Justices. If we take the report at face value and if we think that if it was somebody else, they would have caught them, and I'm not sure those things are true, but then it could be a serious investigation.
Dan: I think you're just quibbling about what "serious" means. I would say what I mean is an investigation that was really equipped to get to the bottom of the matter and reach the truth.
Will: Think of the Mueller Investigation, right, which takes off the table various things you might think the Mueller investigation ought to do, like the question of whether to charge the President with the crimes he committed. It was still a serious investigation.
Dan: Fairly criticized. Okay, we're having a terminological debate.
Will: Let me ask you this. Suppose a Justice did it. Suppose at this point do you think Justice did it, what do you think the Court should do?
Dan: Nothing.
Will: Okay. But not conduct a serious investigation, not even say that. Suppose you're the Chief and you think at this point a Justice probably did it, you think you just do nothing about it?
Dan: What are you going to accomplish by doing it, by saying something? It's just going to continue being a bad look for the Court, right?
Will: I don't know. You might think maybe that a Justice did it, but they're not going to do it again, that this has been a sufficient outcry that it's not going to become a regular practice, or if it has been a regular practice, they're going to stop. If you didn't think that, and then I would understand why you might let it go. But if you didn't think that, it's going to keep happening, I don't know, maybe there'd be some deterrence value or shame value in finding out who's doing it.
Dan: Yeah, maybe. But my intuition is that this was an investigation where they were not permitted even to ask the Justices whether they had done so. That's just my intuition.
Will: That could be. [crosstalk]
Dan: It wasn't really an independent investigation.
Will: But you just seemed to agree that-- but now, it seems like you just agreed that they shouldn't. If it's a Justice, there's nothing you could do about it, there's nothing you should do about it-- [crosstalk]
Dan: Maybe nothing publicly you should do about it. I do think that it would be perfectly appropriate for the Chief to go to Justice whomever and say, "You really shouldn't have done this. Don't do it again."
Will: Well, I suppose he doesn't know which Justice it is. Like, he suspects it's a Justice. He doesn't know which one. Should he go around and ask them?
Dan: I'd like to think that he did ask them. At least had some conversation about this in conference.
Will: Well, that's one thing I wonder, is maybe the one thing you might do is you might give the Marshal the investigation everybody but the Justices, and then you might go, who can investigate the Justices other than the Chief? You might just personally-- [crosstalk]
Dan: Say that in the statement.
Will: Say what?
Dan: Say that-- [crosstalk]
Will: "I looked them in the eyes and they all said they didn't do know."
Dan: I would just say that in the statement of the Court, the Court as a whole agrees, we did not cause this disclosure, and it must have come from someone else. I mean, I don't know.
Will: Is that not implied by all the things the statement does say?
Dan: But we don't even know who signed the statement. Right?
Will: We do know that the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place warranted a thorough investigation. Hard to agree to that if you did it.
Dan: Yeah, but someone could lie. A possibility that a Supreme Court Justice might lie.
Will: Right, if they're going to lie, then a think a lie adding, "By the way, the same court unanimously asserts with no proof that we did not do it." It doesn't add anything.
Dan: Why couldn't the Marshal-- I mean, an independent if you actually wanted to conduct a thorough independent investigation, you would empower that person to at least look at the Justices' records. But of course, we couldn't do that because they're Justices.
Will: Yeah. Well, even Chertoff seems to think that would not be a useful investigative measure. He's asked, "Can you identify any useful investigative measures?, he didn't say, "Well, obviously the one useful thing you could do is-- [crosstalk]
Dan: But he could have been told at the outset it's a no go to do that.
Will: Sure. But then, he would presumably say that.
Dan: [crosstalk] If he was told it was a no go and don't say anything about it?
Will: I don't know why he's writing this letter if it's not asked.
Dan: I mean, he's writing the letter because they told him to.
Will: Right. He doesn't know anything to prove at this point.
Dan: Do you think they had to pay him to do this? Could he have done this for free? I don't know whether there's rules that limit the Court's ability to go get people to do stuff for them for free.
Will: I wondered about that. There are some federal statutes, like the Antideficiency Act and another related statute that forbid federal agencies from taking on sort of free services from private contractors. I don't know whether they apply to the court, so I'm not sure. But that depends. He could charge them a reasonable pro bono rate though, maybe.
Dan: Yeah. Well, it's not pro bono if it's--
Will: Like a rate for a good cause, kind of.
Dan: Yeah.
Will: I assume he didn't charge them $1,000 an hour.
Dan: Yeah, but it might be the case that you're not allowed to accept below-market rates either.
Will: Discount rates. That's true.
Dan: [crosstalk] Somebody who knows. My guess is maybe it's not because there's lots of places where there's rules they govern courts and govern everybody else, but don't apply to--
Will: Courts regularly take on pro bono service of lawyer-- they ask lawyers to pro bono, like they represent a client of the court. I think they do the same with pro bono experts and special masters and stuff like that. I mean the special masters are-- I don’t think the rule that -- [crosstalk]
Dan: Well, I wonder how much it costs to have the Chertoff Group to do this. Presumably, a lot if you're paying market rates.
One other thing that I think is quite notable about the statement of the Court, at the very outset, this is something Melissa Murray noted on Twitter, I think, is important. The second sentence, it says "The leak was no mere misguided attempt at protest."
Will: It was a grave assault on the judicial process.
Dan: Yeah. It was no mere misguided attempt at protest. At least one way to read that is saying it was a misguided attempt at protest, but also was a grave assault on the judicial process.
Will: It doesn't say that.
Dan: It doesn't say that, but it does not say that. It says when you say it was no mere X, you're suggesting, well, it was X, but it wasn't just X.
Will: I think it is intentionally ambiguous about that. Definitely.
Dan: Yes, it is intentionally ambiguous. I don't think given that it was an unsuccessful investigation, I'm troubled by the fact that it at least implies the possibility. It seems to imply a motive. Right?
Will: I think by being ambiguous, I assume that the Justices may disagree with their priors of what it was. I assume the conservative Justices think this was a misguided attempt to protest, and several Justices maybe subscribe to the theory that it's an inside job.
Dan: Right. But at least possibly suggesting that it was one of those things seems inappropriate.
Will: It said it was not that thing. I think it--
Dan: No, it says it was not merely that thing.
Will: Which is consistent with it both being not that thing and being that thing.
Dan: What if it said it was not merely an attempt at protest, but it was? Would you agree that wording is usually used to indicate it was this X, but it was also Y?
Will: I don't think so.
Dan: I think that's how that phrase would be used.
Will: If I said, "This was not merely a snack, but a four-course meal," I don't think that implies that it was also a snack. It's just a four-course meal.
Dan: But it was a four-course meal like is a Venn diagram that subsumes snack. It was food.
Will: "I went to his house and he offered me, not merely a glass of wine, but a full cocktail set." Doesn't apply that in the cocktail set was a glass of wine.
Dan: It applies a ranking. I don't know if you would say that. Okay, we need to hear from listeners about this. I'm going to do a Google n-gram search--[crosstalk]
Will: For not merely X.
Dan: I don't know if it'll actually-- no, I think it won't.
Will: "The person who leaked the document was not merely a law clerk, but actually a Justice," does not apply the Justice was a law clerk.
Dan: I don't think you would say that. I think you would say was not a law clerk, but in fact-- I don't think you would say merely. I just don't think that's how people would use the phrase.
Will: Okay.
Dan: Anyways-- [crosstalk] but again-- [crosstalk]
Will: It's wrong.
Dan: [chuckles] It's not just wrong. We need, like, a tiebreaker [Will chuckles] when we have these kinds of disputes. I don't know who it is. On certain things like on that, there was a civ question where our tiebreaker was Steve Sachs, who you could not possibly object to, and he broke the tie in my favor.
Will: I think this is like labor arbitration. I think the way the tiebreakers work is you and I have to agree on a specific person to arbitrate the specific dispute.
Dan: Right. I don't know who might that be? Think about it. Maybe we can identify that person before the next episode.
Will: Okay. I think we talked about it on the air, it's going to be embarrassing, but we can do it after.
Dan: Yeah, but we may hear from a bunch of listeners and that may cut in both directions and maybe we can identify that person and we can get them to issue a report, a Chertoff-like report.
Will: Or just like a statement from their group.
Dan: Yeah. Hopefully, we don't have to pay market rates for that. Okay. My view is it's kind of cool and interesting that they were willing to release this thing rather than-- [crosstalk]
Will: I think that's very impressive.
Dan: I think it is.
Will: It's surprising.
Dan: I do think it still reflects their kind of reflexive desire to obfuscate and to disclose as little as possible because of the many ambiguities we're talking about. I think that it would be better, were them to be more transparent. But it is interesting.
Will: Yeah, I go back and forth on that. I think it's good they released this. I do worry that given what apparently, we don't know, that a more transparent version of this would just spark more irresponsible speculation. Like if they said, "Alright, in the end, we immediately ruled out the following 41 people. We spent a lot of time focused on these 40 people," I worry that already we're trying to read into what we can and for understandable reasons, I worry that it's hard to know without knowing. Right. It's hard to know. I'm surprised they did this, I actually think this is given the situation; I think this is a very good look for the court.
Dan: Better than realizing nothing, I think.
Will: Well, I guess I would have expected them to release nothing.
Dan: Yeah, I think that's right. I think I would have expected-- or maybe a press release just saying, "After a thorough investigation, we've been unable to determine by preponderance the leak and we are making significant security improvements in the future."
Will: Like maybe just the two-page statement of the court, but with nothing else.
Dan: Yeah.
Will: And I think getting this is surprising and I think gives us some more information and more confidence.
Dan: Confidence? Confidence in?
Will: Yeah. Confidence that the Marshal really did undertake a relatively thorough investigation, with the major exception of the Justice question. There are things on its face that are not thorough with the investigation. Like, they didn't go or encourage them at this point. They didn't bring in the FBI to leverage external resources.
Dan: Yeah. And presumably, however much experience there is within the building, there probably are people that have greater cybersecurity expertise. Maybe the Chertoff statement just is enough to show us that--
Will: The court didn't try to use its own contempt authority to hold Josh Gerstein in contempt, put him in the jail of the Supreme Court, and wait till he breaks. Look, there are things they didn't but, on its face, this seems like they did what you would reasonably want them to do. They need to pull their printers in the network and some other basic stuff like that.
Dan: Yeah. But it does show you what a soft target the Court was in terms of leaking. There are basically no systems in place to keep track of how documents are moving around electronically or otherwise.
Will: Yeah, and that was justified by decades of good behavior and there's a little change. I have a couple of questions. One last loose end, what about the fingerprint?
Dan: Yeah, this is fascinating.
Will: This is my favorite mysterious document detail on the whole thing.
Dan: Super, super mysterious.
Will: Page 17.
Dan: Yeah, can you read the language?
Will: "The investigative team received outside assistance with a fingerprint analysis of an item, relevant to the investigation. That analysis found viable fingerprints, but no matches to any fingerprints of interest."
Dan: What is the item? Because as far as we know, what happened was the story went up on Politico. There was a PDF that was the scan of a printout of the opinion, and then what physical objects would the--
Will: It could be a loose end. It could be that somebody said, "Look, I actually left my phone unlocked at a party with a bunch of DC journalists once, and it's possible somebody snuck into it. I don't know." Maybe they pick up the phone or something. It could be something like that, but as far as we know, it's not.
Dan: Maybe there was like a copy that was printed and was in some kind of suspicious place. Presumably, the court does not have the physical copy that Politico has. I don't think there's anything on that PDF from which you could see a fingerprint. [Will laughs] I can't imagine.
Will: Yeah. I think there must be some item that somehow is relevant, whether it's a printer in a funny place or something.
Dan: Yeah. Super, super mysterious.
Will: Yeah. That's an example of an intriguing detail in the report that I'm sort of surprised we get, and I'd like to know more, but I'm not sure whether we would actually benefit if they explained. If they explained, "We found--" whatever, I'm not sure what that would tell us. So, what do you think is going to change? One of the recommendations in the report is just to note that a lot of people have access to these draft opinions. The current norm is that the email goes out to all the chambers and all the law clerks have them, and then so many people have them and they suggest maybe that's bad. Do you think they're going to move to a world where it's not the norm that if you're a law clerk for Justice X, you see draft opinions in all the cases, that you have need-to-know kind of rule?
Dan: Yeah. That would be really surprising. I think that the Justices would not want that because it would really change their workflow. There's many situations where you want the input of more than one clerk on an opinion, and you certainly want to be able to just discuss what's happening in your chambers without having to call different clerks in and out of your office and lock the door.
Will: Well, you could discuss it without the documents. It could be like it's not a top secret what's happening. Or you could have a rule that anytime you're going to add somebody to the document circle, you've got to write it down or something.
Dan: My intuition is that they wouldn't all agree to that because some of them would want to say, "I want to be able to sit down with my clerks, have them read the drafts, and use their knowledge and-- [crosstalk]
Will: Get their views.
Dan: Yeah, "To give me thoughts on whether I should join, how I should write a dissent," and things like that. My guess is the idea would be more restricting other non-clerk personnel from having access. What's the number it says about how many people had access, something around the order of 90?
Will: Well, there's a series of different circles that 82 employees had access to electronic or hard copies of the opinion, which is 70 people on the distribution list. So, obviously, much more than the law clerks.
Dan: So, it's the law clerks, the conference secretary of whom there's one per chamber. That gets us to maybe 40-
Will: Five.
Dan: -45 people.
Will: Yeah.
Dan: Obviously, the Justices are another nine, but I don't think they're counted.
Will: In addition to the Justices.
Dan: Okay. Yeah. Who would the others be who are on the--? Reporter's office?
Will: It's all permanent personnel who work on opinions.
Dan: Yeah.
Will: This is one thing I wondered about the report. On February 10th, the email goes to the email distribution list of law clerks and permanent personnel who work on opinions. That's 70 people. Then, on March 22nd, six weeks later, eight more permanent personnel received the draft opinion by email. I assume that's the reporter's office.
Dan: I don't think so, because I think the reporter's office gets to work on site checking the first draft, don't they?
Will: Oh, well, maybe not.
Dan: Just in my memory, that's the way it works.
Will: Okay. I don't remember, but you can imagine you sent it to them when you -- maybe on March 22nd is when they had five joins and they said, "Okay, now it's time to start site checking it," or whatever.
Dan: Yeah.
Will: It is interesting to figure out what happened on March 22nd.
Dan: Yeah. Remind me what date the leak occurred.
Will: It's in May, it's May 4th or something. I guess we don't really know when the leak occurred, We know when the-- [crosstalk]
Dan: Sorry, when did the story--?
Will: On May 2nd, Politico published a copy of the draft opinion.
Dan: Okay.
Will: May 3rd, the Chief Justice announced he had directed the Marshal to launch an investigation. On May 5th, the Marshal initiated the investigation.
Dan: Yeah.
Will: In consultation with close advisors, whoever those are.
Dan: Yeah, the close advisors people in the building or?.
Will: I assume at least one of them would be somebody like Jeff Minear, the counselor to the Chief Justice who actually recently left.
Dan: Yeah. I think there's a new counselor to the Chief Justice.
Will: Yeah, a judge on Northern District of Illinois, actually.
Dan: Yeah, Robert Dow.
Will: So, I assume people like that. It could also be somebody in the Office of Legal Counsel who consults legal stuff.
Dan: Yeah.
Will: Maybe they asked Justice Kennedy to help.
Dan: It wasn't you, right?
Will: You mean, did I leak the document?
Dan: No. Were you a trusted adviser who was called in by the Chief as a former clerk?
Will: No, I was not. But If I was, I probably wouldn't have agreed to this podcast episode.
Dan: Or you would have imposed strict requirements on me in advance. There are certain things that are off-limits, just like investigating the Justices.
Will: Yeah. I don't know what I would have done, but I don't think that kind of thing like what would happen. No, I was not consulted on this at all.
Dan: It's too bad. They should consult you on everything.
Will: I agree. I used to write them letters [crosstalk] talking about court administration topics [unintelligible 00:40:39].
Dan: Like the whole court?
Will: Uh, depends on who is relevant to.
Dan: But not just like your Justice. You would write random ones, like, "Here's a thing I think you should do differently."
Will: There was a time when it seemed to me that a lot of law clerks were not being adequately instructed on what their post clerk should do to the court work, in terms of a group of clerks contacted various folks of the court, not just particularly Justices.
Dan: Like confidentiality obligations or what cases they could work on.
Will: What it is to work on a case.
Dan: Okay.
Will: There's a rule that Supreme Court law clerks can't work on any matter pending or contemplated for filing at the Supreme Court for two years.
Dan: Mm.
Will: But many of them are hired by appellate practices that have a huge Supreme Court practice. I will just say, law clerks in general behave impeccably, but what partners expect is okay varies wildly from place to place. You'll find partners who would ask me, "Can you sit on a moot? It's just moot, right? That would be okay." Obviously, I cannot moot your case that's pending for the Supreme Court.
Dan: Yeah, no, clearly not.
Will: But other people-- anyway, that kind of thing.
Dan: That's interesting. I've never sent them a note. I guess I assume they wouldn't listen to me, but maybe I will now that I know that. Would you get responses sometimes?
Will: I'll put that in a classified portion of the report.
Dan: Okay, alright. I'll take that as a yes. Okay, anything else to say about this?
Will: I don't think so. Do you think we're ever going to find anything more or you think this is what it's going to be?
Dan: I think there could be more leaks that tell us more about the shortlist if there was a shortlist. I could imagine some story a couple of months down the line saying they think it was somebody in Justice Breyer's chamber or something like that.
Will: My gut is like two years from now we're all going to know who did it.
Dan: Really? Why?
Will: It's not quite rational. I don't know because they're going to admit it, because somehow my gut is that the walls are closing in.
Dan: Why? If they did this through investigation, what is going to change? If the person doesn't come forward, what is going to change?
Will: I don't know. Maybe it's going to turn out to be one of the Justices or one of their spouses, and somehow, that would come out.
Dan: How would that come out?
Will: I don't know. That's my gut. I don't have evidence for it.
Dan: Yeah. [crosstalk] Can you explain the mechanism though?
Will: No, a range of mechanisms, like a person decides to come forward or somebody has previously been covering for them.
Dan: I don't think anyone's going to come forward now.
Will: Okay. I don't know.
Dan: The reason being because everyone who's not a Justice signed the affidavit, right?
Will: And so, that person is now subjecting themselves to potential criminal prosecution.
Dan: Yeah.
Will: That person is not going to come forward. Maybe they'll come forward-- I think someone might come forward in 30 years after the statute of limitations has run and tempers have cooled. I think if this was an employee, they're not going to come forward in two years. I think that's crazy to think that.
Will: I think if somebody wanted to come forward, they could negotiate a deal.
Dan: What would they have to gain by doing that? And what would the deal be?
Will: I mean, the deal would be no criminal prosecution in exchange for coming forward.
Dan: But what is the upside?
Will: I don't know.
Dan: Why would the court agree to that deal?
Will: I assume the court would agree to that deal.
Dan: Why?
Will: Because they want to know who it is.
Dan: I just cannot imagine what someone would gain to admit that they not only did it, but that they committed perjury.
Will: Maybe it's going to be somebody who didn't commit perjury, somebody who's not in the--
Dan: The Justices.
Will: --93. Maybe somebody would come forward because somebody else that they care about is coming even more firmly under suspicion. Maybe somebody at Politico is going to leak it. Maybe some--
Dan: None of these things seem remotely plausible to me.
Will: I get it. I think in January 2025, we're going to be recording an episode or some time before then, I think it's going to come out.
Dan: I think it's possible. I think you're saying it's more likely than not. I don’t-- [crosstalk]
Will: [unintelligible 00:44:34] the evidence. I'll bet you dinner.
Dan: Okay, I'll take it.
Will: Okay.
Dan: Some listener is going to need to remember this and remind us and confront us with the evidence, but I feel pretty good about that. Another friend bet me that we would know the identity by like the summer and bet me a drink and obviously I won that bet.
Will: Yeah.
Dan: I feel reasonably good about this one. I think we might know more in terms of suspicions. I think I could imagine a story saying like, "Suspicion circled around X person, but there was nothing that they could pin the person on." Do you think that counts as-- I don't think that counts as vindication for you.
Will: I don't know if it has to be a full confession, but I think has to be you and I would agree we know who did it.
Dan: Mm, like know in the philosophical--
Will: Past the-- [crosstalk]
Dan: -justified, true belief test. I think I might say like I think it--
Will: As long as you are not willing to say you know who did it, then you win the bet.
Dan: Well, I'll just say, what is knowledge? There is no knowledge.
Will: As long as you stick to that, as long as you're not going out of the Washington Post saying, we know it's--
Dan: Okay, well, then I get some, I get a free dinner now. And I hopefully, it'll be as good as the dinner at your conference earlier this year.
Will: We can negotiate. It'll be good, it'll be good.
Dan: Okay. Alright. I think that's what I have to say about this.
Will: Me too.
Dan: Okay.
Will: Nice try, Court. Thanks for doing your best.
Dan: Or did they do their best if they didn't talk to the likely subjects, the suspects?
Will: I cannot identify any additional useful investigative measures.
Dan: I don't know. I can, but we'll never know.
[Divided Argument theme]
Dan: Thanks so much for listening. Please send us any feedback, especially if you have any thoughts about the linguistic debate we had, pod@dividedargument.com. Call our voicemail, 314-649-3790. We will accept all submissions, sung or not. Visit our website, dividedargument.com. We have transcripts of the episodes that go up pretty quickly after they launch. store.dividedargument.com for merchandise.
By the way, we should also note we have a live show coming up here at the Washington University School of Law in St. Louis that's going to be on Thursday, February 16th. So, very much looking forward to that. If you're in the area, stop by and more details will be forthcoming.
Will: Yeah, I'm excited about that.
Dan: And anything else to add, Will?
Will: Thanks to the Constitutional Law Institute for sponsoring all our endeavors. If you are the leaker and would like to announce yourself on the show, please call and leave a voicemail. We would love to hear from you. If you are one of the many, many listeners who complained about all of the good Star Wars things that I did not identify in the last episode from Rogue One to The Clone Wars, other things, maybe we'll talk about that.
Dan: Rogue One is good. We can both agree on that.
Will: Yeah, Rogue One is good. It's not within the scope of the question.
Dan: Yeah, for sure.
Will: We can talk about that at a future time.
Dan: Alright. If we go a long time without recording it's because we've been fallen prey of the investigation or being prosecuted.
Will: Thanks.
Dan: Yeah. Under the conspiracy statute. That's the hook.
Will: That's better than some other statute, I think.
[Divided Argument theme]
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