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My friend Tim Kelly gave up a student deferment at the University of Minnesota to enlist in the Army and serve as a platoon leader in Vietnam. When he returned from Vietnam he went to law school and then to clerk for Supreme Court Chief Justice Warren Burger before entering private practice in Minneapolis. Tim wrote me to comment on the events at the Court this week as he recalled his work on the Court’s opinion in the somewhat consequential Nixon case:
The issue now is to reinstate the obligation of confidentiality. Part of that is punishing the leaker–not as easy as one thinks because I believe the bars of Massachusetts, DC and NY would allow a lawyer who leaked this opinion to maintain membership even if that person was convicted of a felony.
The Chief should require all staff to sign a new undertaking of confidentiality that should specifically provide that the employee does not believe the Dobbs leaker was justified and does believe that there can never be justification to leak.
The Chief Justice gave me the oath himself when I became a clerk in an eye to eye fashion. We all knew that we could never leak. I was under great pressure to leak when United States v. Nixon was under advisement. To my knowledge none of us did.
Events this week prompted me to recall the instructions of Eighth Circuit Judge Myron Bright when I went to work for him in 1979 in “Notes on the leak.” I can hear his words echoing in my over 40 years later. I am glad to add Tim Kelly’s recollections to the mix.