What's being called the "gravest, most unforgivable sin" by some, in terms of Supreme Court happenings, has now spurred a next-level move to find out who committed it. Ever since Politico published a leaked draft opinion from the high court earlier this month indicating it will be overturning Roe v. Wade, Supreme Court officials have been on the hunt for who leaked the document—and sources tell CNN that now includes "taking steps to require law clerks to provide cellphone records and sign affidavits." Some of the clerks are said to be concerned enough about the "unprecedented" and "striking" move that they're looking into getting their own lawyers. "That's what similarly situated individuals would do in virtually any other government investigation," an appellate lawyer tells the news outlet.
Gail Curley, the court's marshal and a former Army colonel and attorney, is leading the probe, ordered by Chief Justice John Roberts almost immediately after the leak was revealed. Roberts himself has reportedly met with the law clerks about the leak, though as a group, not individually. It's not believed that the FBI or other federal law agencies are involved in the investigation, mainly because the leak doesn't seem to constitute a federal crime—or, even if it were technically a violation, appears to be afforded whistleblower protections, notes NBC News. That lack of prosecutable criminality could change, however, if the document was acquired through such means as hacking or trespassing.
Mike Davis, president of the Article III Project and a former clerk to Justice Neil Gorsuch, tells the Washington Times that individual interviews could still be in play for the 36 or so clerks. "Start with the law clerks and see what they admit," he says. "They have to get to the bottom of this." CNN notes the clerks aren't the only ones who could've had access to the leaked document: More than 70 others—including staffers within each justice's chambers and in administrative offices, as well as the justices themselves—may have been privy to both electronic and printed copies. Some are expressing surprise that it's taking so long to pin down who slipped Politico the document. "The delay is bad for the court because it can give the impression that this kind of betrayal has no consequences, which could encourage more leaks," Carrie Severino, head of the Judicial Crisis Network, tells the Times. (Read more US Supreme Court stories.)