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More than 90 prominent lawyers and former Supreme Court law clerks including former Attorneys General Richard Thornburgh and William Barr have joined in a statement sharply criticizing the law clerks who gave behind-the-scenes details about the 2000 case Bush v. Gore to Vanity Fair magazine. The statement, submitted to law.com affiliate Legal Times, says clerks who spoke to Vanity Fair contributing editor David Margolick for the piece in the magazine’s October issue engaged in “conduct unbecoming any attorney or legal adviser working in a position of trust.” The anonymous clerks’ disclosures also violate the clerks’ Code of Conduct and their “duty of confidentiality” to their justice and to the Court, the joint statement asserts. Entitled “The Path to Florida,” the article reviews the dramatic events of four years ago and depicts sharp divisions within the Court over whether the Florida recount should proceed or be ended. Justices Antonin Scalia, Sandra Day O’Connor and, eventually, Anthony Kennedy are portrayed as determined to reach a result that would hand victory to George W. Bush. Several law clerks are named, though they are not necessarily among the clerks Margolick was able to interview. Margolick says roughly one-fourth of that term’s 35 clerks spoke with him. In a footnote published with the article, Margolick, a former legal affairs reporter for The New York Times, acknowledges the confidentiality rule and says none of the clerks he spoke to disclosed internal documents or conversations with their justices. But he indicates that the clerks who were willing to give him other details did so because they felt strongly the Court had acted improperly in the election case. “We feel that something illegitimate was done with the Court’s power, and such an extraordinary situation justifies breaking an obligation we’d otherwise honor,” Margolick quotes one clerk as saying. The joint statement responding to the article says the clerks’ breaches of confidentiality “cannot be excused as acts of ‘courage’ or something the clerks were ‘honor-bound’ to do.” Later it states, “Personal disagreement with the substance of a decision of the Court … does not give any law clerk license to breach his or her duty of confidentiality.” In one episode reported in the story, Scalia clerk Kevin Martin visited the chambers of Justice John Paul Stevens to discuss the case with Stevens’ clerks. The conversation “turned nasty,” Margolick reports, and Martin stormed out. Martin could not be reached for comment. On another occasion, Kennedy was said to have visited Justice Stephen Breyer’s chambers, where he stated aloud that he hoped Breyer would join his opinion against continuing the recount. “We just kind of looked at him like he was crazy,” a clerk is quoted as saying. ‘UNBELIEVABLE’ Andrew McBride, a 1988 O’Connor clerk who helped draft and circulate the statement, says it was launched after “seven or eight former clerks of various years read that footnote and said, ‘This is unbelievable.’ ” He says clerks of all political stripes were upset that some clerks were willing to violate their Code of Conduct because of their disagreement with Bush v. Gore. Signers were solicited nationwide, McBride says, adding that none of the 2000 clerks were asked to participate. McBride, a partner at Wiley Rein & Fielding, says disclosures like those made by the clerks in the Vanity Fair article damage the functioning of the Court. “It has to chill communications” between justices and their clerks, he says. Erik Jaffe, a 1996 Clarence Thomas clerk who also signed the statement, says confidentiality is a crucial obligation. “Clerks have unprecedented access and are granted unprecedented candor,” says Jaffe, who compared what the clerks did in Vanity Fair with “stealing my diary.” He adds, “If any attorney did that, he’d be disbarred.” McBride, speaking for himself and not the other signers, also says the magazine’s use of the information provided by the clerks was “not good journalism.” He reasons that the views of any clerk who was willing to violate the Code of Conduct were inherently suspect and, in this case, were one-sided against the Court majority. “The reliability of the statements cannot be verified, and other clerks can’t respond because they feel bound by the code,” McBride says. In an interview, Margolick agrees that “people on one side of the decision were much more likely to talk than those on the other side.” But he acknowledges the imbalance in his story and does not feel that the clerks who spoke to him were political advocates. “They were offended as lawyers by what the Court did.” Margolick adds, “We don’t have the complete story of what went on, and it’s not completely balanced. But it is important for the public to have as much of the story as possible and not wait for 30 years to get it.” Artemus Ward, author of a forthcoming book on the high court’s clerks, says he found clerks sharply divided over the confidentiality issue. As he sought to interview dozens of clerks — not about specific cases but about the functioning of the clerks and the Court — some were glad to speak to him, while others, including some who clerked for long-dead justices, were angry at him for even asking. Ward, a political science professor at Northern Illinois University, notes that many clerks were interviewed for the 1979 book “The Brethren,” some of them apparently upset with Chief Justice Warren Burger and other members of the Court. Some spoke to the authors, Bob Woodward and Scott Armstrong, with the permission of their justices. Efforts to solicit responses to the article and to the statement from the clerks who were at the Court during the 2000 term were largely unsuccessful. Most did not return phone messages, and those who could be reached would only speak as long as they would not be identified. One 2000 clerk says he has gotten interview requests from journalists over the years seeking comment about Bush v. Gore, but never returns their messages. “There should absolutely be no breaches of confidentiality,” he says. Another 2000 clerk says, “Because I take the obligation of confidentiality seriously, I wouldn’t talk to Margolick, and I won’t talk to you.”

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