John Roberts' plan to find SCOTUS leaker could fall apart: CNN legal analyst
Chief Justice John Roberts (Photo by Andrew Harnik for AFP)

Reacting to a report from CNN that Chief Justice John Roberts wants all of the Supreme Court clerks to sign affidavits and turn over their cell phones as part of his search for the source of a leaked draft ruling on abortion in America, legal analyst Jeffrey Toobin suggested his efforts could face a potential major roadblock.

At issue is the search for the leaker of Justice Sam Alito's first draft of a majority opinion that, if it has not been amended, would gut Roe v. Wade.

Early Monday, CNN's Joan Biskupic reported that the clerks -- each of them essentially an employee of the associate justice who hired them -- have been told to turn over their cell phone data with her report stating, "Some clerks are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire outside counsel."

Speaking with CNN's Kate Bolduan, Toobin said any one of the justices could throw a wrench in Roberts' pursuit by running interference for their clerks.

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"The Supreme Court is perhaps the last institution that I can think of that operates, more or less, only on the honor system. the confidentiality between law clerks along with the justices is something that has really been sacrosanct," he explained. "I've done reporting about the Supreme Court, but only with former clerks. It never occurred to me to talk to a sitting clerk, and I never knew of a journalist who had talked to a sitting clerk until this extraordinary leak."

"You know, at one level, it makes sense to ask people what's in their cell phones, but, you know, our whole lives are in these things; medical information, personal information, financial information," he continued. "I can understand why even innocent law clerks would say, 'You know, I did not sign up for it,' as Joan said. So I think this is going to present them with a dilemma. Remember, they can be fired if they refuse to turn over their cell phones -- this is at-will employment at the Supreme Court -- so it's really going to be an extremely tense issue for a lot of these law clerks, about what they want to do with turning over this incredibly personal information."

"What happens if a clerk refuses to comply? I mean, you seem to have just said it right there. They could lose their job over it," host Bolduan pressed.

"You know, it's also a tense situation because the individual justices are zealous in protecting their relationships with their own law clerks," Toobin elaborated. "They don't want others to ask how opinions circulate within chambers, who has access. You know, some justices may take their law clerk aside and say, 'This is overly intrusive. I'm not going to agree to have my law clerks investigated in this way.' So what is the marshal who is conducting the investigation do then?"

"You know, most leak investigations end without an answer," he added.

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