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The Beat With Ari Melber

given the degree to which a lot of those stories centered on certain justices, why didn't the court come out immediately by saying that the justices had been improved? and why wouldn't they put them to a sworn affidavit like any other employee? >> so, i assume that that's a rhetorical question, right? this was the obvious move for the court to make. if i can put on my prosecutor hat for a minute, had i been looking at, this is a criminal investigation, and the court suggests in its report that it considered some criminal statutes, the first thing that you need to do, if only for completeness' sake and to rule out the possibility is to talk to justices whose names have come out in the past. one of those justices was justice alito. he had publicly said, this isn't true, i never leaked this opinion. still, you need to touch bases with him. and here's yet another reason it was incumbent on the court to talk seriously with the justices. if you are a law clerk getting ready to launch your career, leaking an opinion makes no

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The Beat With Ari Melber

>> another leading question, but i'll take it. yes. you know, i've been covering the court for about ten years and there is a lot of animosity in the opinions. there's a lot of vitriol. but i've been so impressed watching the justices respond after one justice calls another justice's legal reasoning pure applesauce, saying, i would rather hide my head in a bag, they come back to the oral argument the following week and they're hunky-dory. they don't seem to be hunky-dory this fall. i think there's a new kind of iciness on the bench. they are looking at each other with some disdain. they are less patient with each other. they are showing signs that they're not as friendly as they used to be. we used to have clarence thomas and stephen breyer -- they would whisper and chuckle like schoolboys during arguments. we don't have anything like that anymore. with the exception of neil

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The Beat With Ari Melber

confidence in the outcome. >> so, steven, joyce has pointed to this in-house investigation, and this is a recurring light motif with chief justice john roberts. wherever there has been an issue with the federal judiciary, where congress has wanted to weigh in, he's said that this can be handled in house. the courts can take care of this. are there limits to what the judiciary can do and was this a situation where it was really incumbent on the supreme court and the chief justice to instill some more confidence in this institution by going outside, maybe actually finding the leaker. >> oh, i think you're absolutely right. and i think joyce is right. this should not have been handled by gayle curley. this is not her job. she's not trained in this sort of work. but i think there should have been some help from the justices when gayle curley was undertaking this work, right? if you're going to ask all of the employees of the court to sign an affidavit, saying "i'm not the leaker," and exclude

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The Beat With Ari Melber

only the nine justices, if i'm chief justice roberts, i would say, we should all do it, you know, hand me the pen, hand me the affidavit, i'm going to sign it right now, because it's both for reasons of fundamental fairness and for reasons of optics, right, for a court that attempts to be an institution that the public has confidence in and that has really been rocked by legitimacy concerns over the past year and by public opinion polls that are at the lowest they've ever been, you would think the justices would want to clear the air and reassure the american public that the imposter is not in the supreme court building. >> you would think. joyce, steve has hit on the elephant in the room. there has been reporting from "the new york times" about a coordinated influence campaign that targeted the justices and in fact, there had been an earlier 2014 leak in the hobby lobby contraceptive case. given all of that history and

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The Beat With Ari Melber

been filed in that same court before that same judge. trump had alleged that james repeatedly abused her position, pursuing a personal vendetta against him. to discuss this, we bring in our msnbc contributor and former federal prosecutor, joyce vance. joyce, i felt the heat coming off of this opinion. this seems like a real turning point in how the federal courts are going to deal with donald trump. is that your take? >> so, i think it's important to have context. the rule that the judge used to sanction trump here, federal rule 11 impose sanctions in cases that they deem to be frivolous. the rule doesn't say this, but judges interpret that to mean utterly frivolous. they don't bend over backwards to use this rule. these sorts of sanctions are very rarely imposed. i talked with some colleagues in

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The Beat With Ari Melber

sense, right? it's a career ender for you, and there's very little to gain. the only people who are really insulated from any sort of repercussion if they leak the opinion are the justices themselves. they have life tenure, you know, people can call them names. there's not much that you can do to someone with life tenure. and so for appearance' sake, but also for completeness of the investigation, it would have been important for them to put a full-court press on the justices, but to your point, i think the justices themselves, had they had, you know, public confidence in the institution as their north star, they would have led the charge and insisted that they permitted to sign those affidavits. >> steven, as joyce says, these justices enjoy life tenure, which means they're going to be together for a long time. last year, justice thomas blamed the leak for cultivating a climate of distrust and rancor at the court. have you seen signs of a court that's suffering from a lack of collegiality?

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The Beat With Ari Melber

that becomes harassing. and at some point in that pattern of conduct, a judge or a group of judges become frustrated. there's a waste of court resources, and they will use rule 11 sanctions to tell that litigant, you've got to quit doing this. but it takes a lot for judges to reach that threshold. i think that's what happened here. the court is out of patience, it may signal to other courts that this is now one of those annoying litigants who brings repeated cases that are meritless. and in the context of this particular case, right, this is trump suing hillary clinton, the dnc, others who are members of the dnc, but also individual fbi agents, and saying that they created a false narrative about his campaign's willingness to engage with russia during the 2016 campaign. and he files this after the senate intelligence committee, which is led by republicans at the time, issues a bipartisan report that concludes that paul

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The Beat With Ari Melber

interviewed did? >> so, it's just one more opportunity that the court missed to help the public have more confidence in the court and its internal procedures. it's such a terrible misstep and i think what we see in that is the justification that would have existed for the court to go to an outside, independent entity to conduct this investigation. the marshal isn't used to conducting criminal or even quasi criminal investigations. and in fact, at the end they brought in former homeland secretary michael chertoff to look over what she had done and to sign off in essence on her investigation. likely, it would have been better to bring in someone at the outside from the beginning, someone when might not have had institutional concerns about talking with the justices themselves and interviewing them and subjecting them to the same rules that everyone else who spoke with investigators was subjected to. if nothing else, that would have helped the public have greater

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The Beat With Ari Melber

the supreme court is closing its investigation into a leaker. after a months-long investigation, the supreme court cannot identify who leaked the decision that would ultimately overturn roe v. wade. politico published the leak draft opinion in may, nearly two months before the official opinion was formally issued. the leak prompted protests outside the supreme court and across the country as americans learned the 50-year-old precedent roe v. wade would likely be reversed. after confirming the authenticity of the leaked draft opinion, chief justice john roberts charged the supreme court marshal, gayle curley, with investigating the leak. now it seems the investigation that began with a bang has ended with a whimper, deepening the lack of trust in the nation's highest court. the released statement from the court reads, quote, the marshals' team determined that no further investigation was warranted with respect to many of the 82 employees who had

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The Beat With Ari Melber

access to electronic or hard copies of the draft opinion. it also noted, quote, they have conducted 126 formal interviews of 97 employees, all of who denied disclosing the opinion. new today, the marshal confirmed that all of the justices were interviewed as part of the investigation. but she also said that she, quote, did not believe that it was necessary to ask the justices to sign sworn affidavits, which means that i still have so many questions. and back with me to answer them is msnbc contributor, joyce vance and alongside joyce, we have steven macy, who covers the court for the economist and wrote the new "atlantic" article, the supreme court justices do not seem to be getting along. joyce, what stands out to you about the justices being interviewed, but not having to sign the sworn affidavit, as the other employees who were

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