Legal experts weigh in on daunting 'no-win' situation SCOTUS clerks are facing amid leak probe: report

Legal experts weigh in on daunting 'no-win' situation SCOTUS clerks are facing amid leak probe: report
U.S. Supreme Court Building, January 2011, Joe Ravi

Legal experts are sharing their opinion on the U.S. Supreme Court investigation into the Roe v. Wade draft opinion leak and the daunting situation clerks are faced in the midst of it. In short, it appears to be a "no-win" situation. According to CNN, many legal experts agree that the leak is "likely not, by itself, a crime," despite the controversy it has caused.

Speaking to the news outlet, Liz Hempowicz, the director of Project On Government Oversight, said, “These clerks are in a no-win position right now."

Hempowicz added, “What lawyer would advise anyone to hand over personal information like this and cell phone records like this without the advice of an attorney?”

Catherine Fisk, a University of California, Berkeley School of Law professor of employment law, also expressed concern about clerks and the role they play when it comes to having access to information. “The clerks are probably the most vulnerable workers who had access to that information in the building because their career could be dramatically affected by how they chose to respond,” Fisk told CNN. The basic act of lawyering up could create an inference of guilt “is certainly a fear that they would have.”

Harvard Law professor Laurence Tribe also weighed in and suggested clerks consider seeking legal representation in the wake of the latest controversy.

“I think it would be entirely appropriate for any law clerk who lawyers up and tells the chief justice or the Marshal of the Court, ‘No, I won’t let you see my cell phone records. They’re too intimate and too private,’ will need to take the consequence,” Tribe said. “And I think those consequences should include losing their job and losing the CV value, the resume value that job would otherwise have going forward.”

So, how could this situation play out? Adam Augustine Carter, a Washington, D.C.-based principal at The Employment Law Group, P.C., mulled over how things could turn out. Although it would make sense to lawyer up, Carter also explained why it may be a double-edged sword.

“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,” Carter 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.”

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