The NPR Politics Podcast - Ruminations On Supreme Court Leaks, Classified Documents & Preferred Fonts

Episode Date: January 20, 2023

Documents were at the heart of Washington news this week. A Supreme Court investigation into who leaked a draft opinion of the decision overturning Roe v. Wade failed to identify who was responsible; the White House's communications strategy in handling the president's classified document dilemma has left much to be desired; and, a State Department decision to change fonts has our cast thinking.This episode: White House correspondent Tamara Keith, legal affairs correspondent Nina Totenberg, political correspondent Susan Davis, and senior political editor and correspondent Ron Elving.This episode was produced by Elena Moore and Casey Morell. It was edited by Casey Morell. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Stephanie and Dexter. We just chased a squirrel uphill. This podcast was recorded at 1.45 p.m. on Friday, the 20th of January. Things may have changed by the time you hear this. All right, here's the show. I'm not sure who sounds more winded. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Nina Todberg. I cover the Supreme Court.

And I'm Ron Elving, editor-correspondent. It was one of the biggest whodunits in Washington. Someone may have leaked a controversial draft U.S. Supreme Court opinion. A draft obtained by Politico suggests that the high court's conservative majority is poised to strike down the Roe v. Wade decision, which legalized abortion 49 years ago. The leak of a draft decision in the Dobbs case roiled the Supreme Court. Chief Justice John Roberts called it a betrayal and asked the marshal of the Supreme Court to conduct an investigation to find out how this happened. That investigation has wrapped up. Its findings have been released. And Nina, you are here with us. You have read through the whole thing. So Nina, whodunit?

Well, the whodunit is still whodunit. We don't know who did it. And I don't up with for sure was that the pandemic, this is one more thing the pandemic affected, meant that many more people worked at home. Lots of law clerks, for example, live in houses with other people who aren't law clerks, and that the systems at the Supreme Court never accounted for that and in fact had serious gaps. And the recommendation was, you know, you should tighten the procedures so fewer people have access. But everybody who's ever done a leak investigation will tell you this is the hardest thing to do, and most people fail at it. And the Supreme Court failed big time.

Big time. So you mentioned maybe something to do with remote work, but were there any serious recommendations about how to prevent this kind of thing from happening again? Mainly to tighten up who has access, to limit the number of people who have access. But think about it, folks. If you're sitting in front of a computer, even at the Supreme Court, you could take a screenshot of every page in a draft opinion. Now, that's not what happened here. What happened here was the full opinion, the text. I mean, it's online from Politico. It looks the way it would look if you had the whole thing and had either Xeroxed it or something like that. There's never been a leak like this in the Supreme Court.

Yeah. And Ron, there was this line in the report that stood out, quote, in May 2022, this court suffered one of the worst breaches of trust in its history, the leak of a draft opinion. Surely it's one of the worst. If it's not the worst, it certainly does seem to stand apart from all the other ones we're aware of. There was an inadvertent early release of the Roe versus Wade vote. Not the opinion, just the vote and the outcome. There's never been a whole opinion like this. Yeah, see, that's so much different. All that was back in 1973 was a little early heads up as to

what the vote was and which way it was going. But we didn't get chapter and verse the way this accomplished. And so this obviously had an entirely different intent and an entirely different impact. And that draft that was released in May ended up being nearly identical to what the court published later in the year. I went through that document down to the periods and commas. We ran a computer check and there was hardly any word difference at all. To say it was nearly identical is to understate it. So now this investigation has been done. This has been a Washington parlor game ever since the leak first came out. Do you have any better sense of why it was leaked to the press in the first place?

Well, I always thought, and I think the people who cover the court have really, there is a consensus among us from the get-go that this was leaked by a conservative clerk, justice, person outside the court, whatever, in order to freeze the status quo. At the time, Chief Justice Roberts was hoping for persuading Justice Kavanaugh to join him in a separate opinion that would have upheld Mississippi's law that banned abortions after 15 weeks, but would have left intact that part of Roe versus Wade, at least for then. That meant that before the end of 15 weeks, you could get an abortion. There was a constitutional right to an abortion. And he failed in that. And the idea, I think, behind this leak was to prevent him from getting another vote, which would have meant there were five votes

at least for upholding abortion before the 16th week. And it did what it was intended to do. It froze the status quo. Now, you can, you know, there's lots of parlor games about who, if you agree that it's a conservative person, was it a justice? Was it the spouse of a justice? You know, I have no idea. And I don't think anybody else really does. Did the investigators weigh in on whether it was a leak from the conservative side or a leak from the liberal side? Well, the one thing they did do was essentially exonerate the two or three law clerks for liberal justices whose names had been splashed on the internet as potential guilty parties. And they said their view was that those individuals did not do this. So in that sense, they cleared some people very deliberately. They also said that some of the law clerks had told their spouses what the outcome was, which is definitely against the rules, but you can imagine how that might

happen. But nobody fessed up to even knowing anything about it. One of the things that was sort of interesting is that the marshal said in her report that not only did everybody deny it, they denied knowing anything that would be helpful to the investigation. All right. Well, I guess this whodunit's going to stay a whodunit forever, or at least for a very long time. Nina Totenberg, thanks so much, as always, for joining us on the pod. My pleasure. We're going to take a quick break. And when we get back, the latest on the president's classified document dilemma. And we're back and NPR political correspondent Susan Davis is with

us now. Hello, Sue. Hey, Tam. Hey, hey. So this one's in my lane. You know, President Biden's classified document drama has stretched now through another week. And the messaging around him has been something. So to catch you up, a set of documents were found in a locked closet in an office Biden used after he left the vice presidency. That was in early November. But the White House didn't say anything about it to the public or the press until CBS broke the news on January 9th. But then they left out the fact that more documents had been found

in December at Biden's home in Delaware in an interesting spot. People, and by the way, my Corvette's in a locked garage. Okay. So it's not like you're sitting out in the street. But at any rate, yes, as well as my Corvette. Biden only acknowledged that on January 12th after it had already been reported by various news outlets. The president's counsel in a statement said there was also a single one page classified document found in a nearby room and that the search for documents was complete. White House Press Secretary Karine Jean-Pierre said Biden would continue to cooperate fully with what was an ongoing Justice Department investigation at that point. But is the president confident? You said that the search has been completed, but is the president confident that there are no additional documents

with classified markings that remain in any other additional locations? Look, I can just refer you to what his team said. The search is complete. He is confident in this process, and I will leave it there. And they've been cooperating very closely with the Department of Justice. Except that wasn't exactly true at the time she said it. And in a Saturday news dump, the president's lawyers revealed more. A lawyer for President Biden says several additional classified documents have been found at his Wilmington, Delaware home. The discovery will be added to a Justice Department investigation already underway from earlier discoveries of classified documents at Biden's home and office. Meanwhile, President Biden remains defiant. Here

he is speaking to reporters yesterday in California. I think you're going to find there's nothing there. I have no regrets. I'm following what the lawyers have told me they want me to do. It's exactly what we're doing. There's no there there. I mean, Sue, I don't know where you begin with this. This seemed like one of those things that could have been an easy story for the White House to get out in front of. You know, the first documents were found in November, but somehow they keep tripping up, getting behind. You know, now it's a problem on many levels for the White House. It's a legal problem. There's now a special counsel looking into the possession and handling of classified documents. It's a communications problem where it sounds like the White House press secretary has at times said things that

were not true, whether she was misleading or just misinformed, you know, then raises that question. And then there's the perception problem. You know, Biden ran particularly against former President Trump as someone who would do good government, who would bring a more ethical government, who would follow the rules, who would follow the laws. And at best, a lot of this looks sloppy. And at worst, a lot of this looks sloppy. And at worst, there could be some criminal infractions here. And also, we're now in a very weird spot where the two leading contenders for the presidential nomination in 2024, Joe Biden and Donald Trump, are now both subject to special counsel investigations related to their handling of classified documents. And I don't think Joe Biden likes any comparison to his predecessor. Well, no. And President Biden had been critical of former

President Trump's handling of classified documents. President Biden says he takes these things very, very seriously. And he was surprised to discover that there were classified documents in his possession, or at least at his home and his office. But, Ron, it just makes things muddy. It does. And, you know, Lanny Davis, who was a guy who was a lawyer for Bill Clinton back in the 1990s, wrote a book called Truth to Tell, and he gave these three pieces of advice in the title of the book. Tell it early.

Tell it all. Tell it yourself. Well, they basically didn't do any of those things. They didn't tell it early. They could have done it in November, as we've said. They didn't tell it all. They let it come out in dribs and drabs, which is a formula for torture, like drip, drip, drip. And they didn't tell it themselves. It came from the media. CBS was on it, then everybody was on it. They lost complete control of this story. And at a minimum, even if it doesn't turn out that many of these documents or any of these documents was particularly significant or that there had been any intent in taking them or that they had been loosely handled, and that's a big if, but if the special counsel finds a lot of exonerating context for all of this, even so, a major consequence here is that it has largely neutralized issue in the minds of many people. People say, oh, they're both serious. Well, right there, you've greatly reduced whatever political advantage there could have been for Joe Biden.

Tim, you were at the White House earlier this week and you asked the press secretary about the handling of this. Are you upset that you came out to this podium with incomplete and inaccurate information. And are you concerned that it affects your credibility up here? Well, what I'm concerned about is making sure that we do not politically interfere in the Department of Justice, that we continue to be consistent over the last two years. Credibility is a big problem, right? I mean, the press secretary often can be the last to know, but what they say should be factually accurate. It is the most important job of the press secretary. And it is something that on every press secretary's first day, the White House press corps asks, will you promise to come out here and be honest with us?

Will you tell us the truth? And she came out with incomplete information. There was a mission, major omission, like, oh, by the way, the president's lawyers actually, they found one document and then they just stopped looking because they didn't have security clearance. And so they had to get somebody else to come in later and look again. and oh, shoot, there were more in the box. There's just been a series of omissions, not being fully transparent immediately, though often telling a fuller story later. And I think part of this is like trying to balance communication strategy versus legal strategy. And clearly, the lawyers are in the driver's seat here. And there is a concern that is a real concern about not wanting to run afoul of what is now

a special counsel investigation, you know, a Justice Department investigation. You don't want to be in a position of releasing information that they don't want to release or saying something publicly that later will come back to haunt you as part of the investigation. So, you know, as Jean-Pierre has said about 100 million times in the last couple of days, at this point, we're just trying to be prudent. We just want to come out here and be prudent. And now she's really shut down and she's referring all comments to the White House counsel's office or the special counsel in the Justice Department. Tam, isn't there a substantive difference between the Trump and Biden circumstances?

I mean, the holding of classified information is a crime regardless, but that it seems like to me the substantive difference is that the Trump orbit had these documents and fought efforts to get them back by the National Archives, may have misrepresented the documents they did have and when they would return them. And it sounds like the Biden documents came as the result of a self-review in which they identified documents and handed them over to National Archives willingly. So what I would say is that former President Trump was hoarding classified documents and documents that he now on Truth Social this week described some of these folders. He didn't talk about the

contents, but some of these classified marking folders that he hung on to as a keepsake, which is an interesting development there. But so former President Trump was hoarding documents. President Biden and his team are treating them like a hot potato, like, oh, God, we got these things and we just saw them and we didn't know we had them. And now please take them away, Justice Department. So it is a very different approach. And that does make the case different. It also seems like it's really hard in these cases, because classified is such a vast spectrum of how the government sees documents. And Ron, I think, you know, it's like not all, a lot of documents are classified, some classified documents are more important and more critical to national security than others.

And the public just has no way of knowing how substantively important these documents were. That is right. And until we know what exactly was missing or what exactly was found in the possession of these two presidents, we're not going to be able to really compare whether we have apples and apples here. But, you know, for the moment, it all just sounds bad. It all just sounds like these were secrets. They were national secrets. They could have been anything. It's also possible that they were largely inadvertently misfiled, unimportant things. I've been told there are people in the federal government who mark everything they do as in some sense or another a secret document

or a protected document because they want it to be read. And they don't think any of their colleagues who have clearance are going to pay attention to anything that isn't classified. So we all, I think, have some acquaintance with the overclassifying of documents. But that may not apply in either of these cases. These may all be truly hot potatoes. Well, also, special counsel investigations are not known for being very speedy affairs. Right. So it's like this could drag on for a really long time. And that could have political consequences for both Trump and Biden, especially as they're running for reelection or running for president next year. Sue, really quickly before we go to the next segment, I do want to ask you, the Republican majority in Congress is definitely making hay of this. They have an ongoing request already in with

the White House, right? Yeah, I mean, they want to be as looped in as Congress is ever allowed to be on these investigations. And, you know, historically, I don't imagine either the Biden legal team or the Justice Department is going to be super forthcoming because it's an active investigation. But it is certainly politically more ammunition for House Republicans who intend to launch all kinds of investigations into the Biden administration. And, you know, while they may be stonewalled by the administration, and if, you know, past administrations are any indication, they probably will be stonewalled a bit in these investigations, they can do a lot of damage. You know, these oversight investigations, especially drawn out over months and months and years and years, can chip away at a president's credibility, at their, you know,

truthfulness, and raise lots of questions and doubts. And I think that's absolutely part of the political aim of the Republican majority. And whether or not they're going to be successful at it, we don't know. But the vast majority of them would like to spend the next two years investigating Joe Biden. All right, we're going to take a quick break. And when we get back, it's time for Can't Let It Go. And we're back. And it's time to end the show like we do every week with Can't Let It Go, the part of the pod where we talk about the things from the week that we just can't stop talking about, politics or otherwise. And I will go first. Mine is a little bit politics, a little bit otherwise.

It's like, you know, an entertainment story. So Joshua Molina, who was an actor in the show West Wing, tweeted, Hey, I'm back on Twitter just in time for the West Wing reboot. And, you know, like there is a longstanding interest in a reboot of the show, The West Wing, that was very popular from like 1999 to 2006 approximately. You know, it was about the West Wing. I think our listeners are perfectly aware of what the West Wing is. I don't know how much explainer this crowd will need about the West Wing. Okay, fair point. Fabled political drama. Yes, it is like an idealized version of what a White

House would be when in reality Veep is the true documentary. And so he tweeted, could be, you know, I'm back in time for the West Wing reboot. But he is known to be a practical joker. And it is not clear that there actually is a West Wing reboot. And then he tweeted again yesterday, a picture, he says, first image from the set of the West Wing reboot, exclamation point. And, you know, it is a picture of two actors that are part of the original West Wing. but i don't buy it man it looks like a picture from like 2003 it feels like a troll because if there was gonna be a west wing reboot it doesn't feel like that's how they would roll it out here's the thing that tipped me off um you know like bradley whitford has white hair now oh yeah, yeah, yeah, yeah. And in this picture. They look a lot younger.

They look younger. Yeah. I mean, we looked younger back then, too. Yeah. It's kind of mean, too. Like, I admit I was not a West Wing viewer, but I'm aware of it. And I know what it means to people. And I feel like it's the kind of audience that you can't tease a reboot without it being, like, a little bullying to your audience.

Because you get a lot of hopes up. That's right. Hey, man. Don't kid about a red boot of the West Wing. Some things are sacred over the line. Ron, what can't you let go of? Well, you know, this is a sad one because we don't really know all the circumstances, but the New Zealand prime minister, Jacindainda ardern who became well became a global figure really when she was just 37 becoming the leader of new zealand prime minister and a person

who handled the christchurch mass shooting worst ever in new zealand history and the pandemic and has just earned a great deal of admiration from people around the world, suddenly announced this past week that she's just going to step down, February 7th. She's just done. And she's not going to run for re-election, but it's not just a matter of filling out a term. She's been in office for five and a half years, and she's just not going to continue. Just not even three full additional weeks. That's shocking to us, partly because our system works so differently than the parliamentary system, but also because I think a lot of people had expected to see her on the world stage indefinitely and playing certainly an outsized role in New Zealand history. Maybe she'll be back.

We don't know all the reasons that she might have for leaving, but she said she knows what the job takes and she just doesn't feel like she has it in the tank anymore to do it. And especially, she said, under special challenges. And that's a remarkable thing for somebody to admit at the age of 42, especially when you consider how many world leaders, including in our country, are certainly at another stretch of the age range as they take on the biggest responsibilities there are. I sort of respect her for it. I think that like you almost wish more politicians would be more self-aware and know when they've run out of steam and let other people rise up. I think it kind of takes courage in a weird way to bow out before people, other people might think it's your time. I also think that she may be more popular in America than in New Zealand at the moment.

But I don't know if that's part of it. There certainly is a there's a vituperative critical element. And I think that's part of what many people feel has driven her from her original commitment to public service. Sue, what can't you let go of? The thing I can't let go of this week is Times New Roman, the font, the font of my youth. There was news this week that the State Department under Tony Blinken sent out a cable to the U.S. embassy saying they will no longer allow the use of the Times New Roman font in official communications and that they are shifting to the Calibri font. And I didn't know this, but apparently it's partly a disability issue that fonts like Calibri are easier for people with some vision impairment to be able to read or for readers to be able to scan and, you know, verbally read for people who have sight issues. But I feel like there is a real hatred of the Times New Roman font in the modern workforce. And I have to say,

I'm still a Times New Roman person. And I feel like that is a lonely position to be in the font world. I just, I'm taken aback by this, Sue. I know. It might surprise you, Ron. It might surprise you. But I feel like you might, of all people, might be on my side. I am. I'm Times New Roman all the way, I got to tell you. So I'm more of an Arial gal. And it makes me crazy that if I like paste into like an email, it defaults to Calibri. And then I'm like half Arial, half Calibri. I think this is like a Microsoft conspiracy. Anyway, I have a lot of feelings about fonts, but I will save them for another time. I do too. I was surprised how much this provoked my feelings about fonts. But

when I learned how to type in high school and all through college and you had to hand in papers, most of my teachers of the time and through college, and I went to college where Professor Elving teaches a class at American University here in DC, most classes you were not allowed to turn in papers unless they were in Times New Roman. Like it would be in your syllabus which fonts were acceptable or not. So like my whole learning, it was like Times New Roman is the only font.

And now everyone's just throwing fonts around. Like it's like there's no rules anymore. And I find it kind of stressful. Yeah, it carried authority. It was always supposed to carry a certain authority like the Times itself. Also, there is a thing, which is that if you were to, say, put it in Courier instead of Times New Roman, it would fill more pages. You could stretch the length of your pages.

Yes. You change the margins. You put that in Courier New, and you make a two-page paper like a four-and-a-half-page paper. No problem. Exactly. Shocked. Shocked. Shocked.

All right. That is a wrap for today. Our executive producer is Mathani Mathuri. Our editor is Eric McDaniel. Our producers are Elena Moore and Casey Morrell. Thanks to Brandon Carter, Lexi Schapittle, Devin Speak, and Krishna Dev Calimer. I'm Tamara Keith. I cover the White House. I'm Susan Davis. I cover politics. And I'm Ron Elvin, editor correspondent. And thank you for listening to the NPR Politics Podcast.