Date: June 1, 2022
TELG principal Adam Carter spoke with CNN about the Supreme Court’s internal investigation into the recently leaked opinion on abortion rights. Requests to cooperate are potentially putting clerks into a no-win situation – where anything they do is suspicious.
“If you don’t cooperate, you are going to look suspicious. Sadly, when you lawyer up, you’re going to look suspicious for that as well.”
Adam Augustine Carter
Escalation of the Supreme Court’s leak probe puts clerks in a ‘no-win’ situation
In most other pockets of the federal government, a public employee’s decision to lawyer up in the face of an internal investigation would be a no-brainer. But for Supreme Court clerks now being asked to cooperate with new steps in the court’s leak probe, such a move could upend the trajectories of their careers.
Legal experts have said that the disclosure to Politico of a draft Supreme Court opinion ending the right to an abortion is likely not, by itself, a crime. But clerks now are in a precarious position with the move – as reported exclusively by CNN Tuesday – by court officials tasked with leading the investigation to ask that they turn over private phone data and sign affidavits. A clerk may potentially be viewed with suspicion if they hesitate to cooperate or seek outside counsel before participating.
Ultimately, it may be up to the individual justice for whom the clerk works to determine what kind pressure the clerk feels to participate, given that the justice may be the arbiter of not just the clerk’s current employment, but what kind of jobs the clerk gets recommended for in the future.
“A lot of this is very, very intrusive into how a justice’s chambers works and so I could see the clerks not wanting to go along with it,” Adam Augustine Carter, a principal at The Employment Law Group, P.C. in Washington, DC, told CNN. “On the other hand the associate justices are going to be under pressure from the Chief justice, who launched the investigation, and the Marshal, to cooperate, and if you don’t cooperate you are going to look suspicious. Sadly when you lawyer up, you’re going to look suspicious for that as well.”