Shannon Bream’s Inside Scoop on the SCOTUS Leak Probe

BUCK: Shannon Bream is with us. She is Fox News’ chief Supreme Court legal analyst. Shannon, great to have you on.

BREAM: Thank you. It is my pleasure, Buck. How are you?

BUCK: I’m good. It’s been a while since we talked to you. We always are very happy when you get a moment to join us here. Shannon, I just wanted really your…we can get into some of the details and some of what you think the implications of this will be down the line, but first, what was your 30,000-foot view when the announcement came out? No, nothing. They didn’t find out who did this.

BREAM: Yeah. And they say that they’ll keep following leads and looking at things that they have. But it sounded to me like they got nothing because of the wording of the statement from the court said, “After everything we’ve done, forensic audited cell phones, texts, sworn-affidavit interviews, we could not find anyone by a preponderance of the evidence,” which, you know, that’s such a low standard. It’s basically that something is more likely than not. So, they haven’t even gotten to that place, then it really sounds like there are not good hard leads for them at this point.

CLAY: No doubt. Shannon, thanks for coming on. First of all, I want to give you some props. It’s a big deal. You are killing it on Fox News Sunday as the host. If people haven’t checked it out, they should.

BREAM: Thank you.

CLAY: And you are going to be doing your show from the end zone of the Super Bowl. Now, I know your husband. He’s fantastic. Is that maybe the thing he’s most impressed that you have ever pulled off in your career to get to do a show from the Super Bowl end zone on the Sunday of Super Bowl Sunday?

BREAM: Probably so. Although he’s much less impressed with my football skills, he actually bought me a Nerf football and he’s making me throw it because there’s talk that I may have to do some of these NFL drills or something while we’re there.

CLAY: You don’t want to pull a Fauci on the baseball toss, Shannon. You got to get the arm loose and get a little bit of practice out there.

BREAM: I’ve not mastered the spiral, that’s for sure.

CLAY: So, Buck and I were talking, so congratulations on all that. Buck and I were talking in the first hour and he was reading through, and I’m sure you did as well, even if they had found the person, the criminal behavior is a bit of a stretch in terms of what they could be charged with. Do you think there might be any motivation in the wake of this leak to potentially have a statute drafted that would make it criminal to engage in behavior like this as a further sign, not just to break the Supreme Court mores and traditions, but also in a similar way that if you worked at the CIA or the FBI and you were caught leaking internally, that that might make it clear that it’s a criminal offense? Does that make sense?

BREAM: Yeah, I totally get it. And that’s a great question because there are laws out there that have to do with handling classified information. A Supreme Court document, a draft of an opinion is not considered classified. There are codes, ethics codes, those kinds of things, but not necessarily a criminal penalty for disclosing something that’s secret information at the Supreme Court. That’s another reason that people have questions. Listen, the chief justice kept it in-house, one of the marshals inside the Supreme Court to handle this.

But there’s also this question of, okay, if you brought in the FBI or DOJ, which I can understand the reasons the U.S. SCOTUS may not want to do that, but then if somebody lies to a federal agent or investigators, that’s a whole different issue versus, “Listen, you can still get in trouble for signing a sworn statement”, which they say everybody they interviewed did, and they all did that under penalty of perjury and denied that they leaked the document. But, you know, when you bring in a federal agent, I think that that turns up the temperature. And for whatever reason, the chief said, we’re not going to do that.

BUCK: So, Shannon, it sounds like they could have gone a little more all out here than they did at a minimum. Right? I mean, whether they were even willing to chase it in every way they could with what they deployed here, they decided not to go with the full heat that they could.

BREAM: Well, what’s tricky is you have classes of clerks. As you guys know, they serve a year there and they generally cycle in and out in July. So, anybody who left in July of 2022 was no longer under the reach of this investigation because it was being done internally of Supreme Court employees. And once they were gone, who knows if it involved a clerk or not. But if it did, you’ve now lost the ability to pursue that any further. So, that may be a gaping hole for a lot of people that you would think, okay, they are a Logical place to look. They potentially have different motivations. They may be completely in the clear, but once they left in July, this internal investigation had no way to reach them.

CLAY: Shannon, I’m curious how you would assess this. Buck and I were also talking about, hey, if you’re a journalist and a draft opinion gets dropped into your lap, one of the first things I would think is, “Okay, am I getting set up?” Because there are lots of different opinions that could or could not be valid. It’s also possible — you well know — every major law firm in the country could have somebody draft one, right? I mean, it’s not an exact science of what these things will look like. So, if I’m Politico, it’s not only that I’ve got the draft.

It’s that whoever is giving me the draft has to be so supremely reliable that I’m willing to go out there on a whim because you’re probably not going to get any confirmation, right? Like, not like you can call them up and be like, “Hey, Supreme Court, we got this draft opinion.” The Supreme Court’s not going to say, “Yeah, it’s accurate or inaccurate.” Doesn’t that lead you to believe that whatever route by which this opinion got to them, Politico felt like, “Okay, this is a slam dunk. This is 100% real.”

BREAM: Yeah. And it makes it feel like… it lends credence to the theory that it was an inside job. Also, because the report we got from the Supreme Court yesterday said, “We went through all of our I.T., we used all the forensics we’ve had, and we found it’s highly unlikely that someone breached our system from outside or that this was a hack”, which is essentially them saying, again, “It sounds like it’s an inside job.” And you’re right, if I’m a reporter and somebody brings it to me, your every alarm and bell and whistle is going to go off in your head unless you are convinced that person had direct access to it. And we know from this report there were 82 different people who did.

BUCK: Yeah, you don’t you don’t want to get Dan Rather National Guard documented on this one.

CLAY: Well, yeah. Right?

BUCK: Yeah.

BREAM: You do not. And I like the way you described that as if it’s its own dictionary entry.

BUCK: I think it kind of is at this point. Right. You got Dan Rather-ed. You ran with the fake docs and now you’ve got to pay the price. Shannon, in terms of the long term… We’re speaking to Shannon Bream, Fox News’s chief Supreme Court analyst. Shannon, the court going forward, do you think that people… were we all just kind of aware that it was very politicized before this and so this doesn’t do much, or do you think this has really shifted and shaped perception about a willingness to use the court and really abuse the court as a weapon of politics?

BREAM: Yeah. And listen, the Court, it goes through waves of people who don’t like it, whether your party appointees are sort of in the majority or they’re in the minority. People, you know, will have all kinds of very distinct criticisms of the court. Right now, Democrats don’t like it. They are in the minority when it comes to their party’s nominees. And so, they talk constantly about packing the court, about doing things to the court so that it won’t be political, whereas you have members of the court, including Justice Stephen Breyer, who was on the left of the court, say, when you start to do stuff like that, it does politicize the court and it does make the court look political. So, listen, there are people who are… they’ve been split over Roe v Wade for 50 years. And so, no matter what the court did, the other side was going to view it as political. You know, the substance of the decision, aside from the fact that it was leaked. But that’s the absolute last thing the justices over there want, and they’re very sensitive to that, you know, any portrayal of them as being partisan.

CLAY: Shannon, we’re sitting at 51-49 for, theoretically, the next two years, assuming people stay healthy and all those things. There seems to be a certain amount of pressure that is getting ratcheted up on some of the older justices on the left wing, even though they aren’t particularly that old, with the idea being you look at that map. The 2024 Senate majority seems like it’s really going to be in peril. Maybe the Democrats dodged one here. Do you get the sense that Joe Biden might have the chance to appoint another justice, or do you think everybody’s basically going to stay locked in, even though it may be a while until we have a Democrat Senate and a Democrat president both in office?

BREAM: Yeah, I think all the appointees, all the current justices on the court have very much invested in staying put as long as they possibly can for various reasons that make sense based on, you know, the party that put them there. The justices on the left side, I mean, they’re relatively young in terms of Supreme Court justices. So, absent something that forced them to step down, I don’t see them going anywhere. You remember the enormous pressure that was on Justice Ginsburg to step down before, you know, President Trump’s election. She was into her eighties and saying, you know, “Get lost. I’m not going anywhere.” So, you know, there’s always speculation, too, about the Republican appointees. They are, by and large, older than the other side of the bench, but they’re going to do everything they can to hang on through the next presidential election, no doubt.

BUCK: Shannon Bream, everybody. Shannon, appreciate you joining us. And you should check out Shannon’s show and look for her on Fox News. Shannon, thanks so much.

BREAM: Have a great weekend.