ABC News reports, “Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration.” ABC obtained a statement from Justice Alito to explain the context:
“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Justice Alito confirmed to ABC News Wednesday. “I agreed to discuss this matter with President-elect Trump, and he called me yesterday afternoon.”
“We did not discuss the emergency application he filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed,” Alito said. “We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect.”
I have a few thoughts on this story.
First, let’s start with the byline: Katherine Faulders, Jonathan Karl, and Devin Dwyer. Dwyer is ABC News’s Supreme Court Correspondent. Since he is listed last, I think it is safe to assume this was not his scoop. Karl is ABC News chief Washington. Again, if this was his scoop, I would think his name would come first. Faulders is a Senior Reporter at ABC News. I am not familiar with her work, but she has written many recent stories about the Trump cases. Given that her name came first, she was probably the person who obtain the information.
Second, how did Faulders obtain this information? Again, it is not clear that she has “sources” within the Supreme Court. And I can’t even imagine who in the Court would have told her this! Justice Alito? Someone in the Alito chambers? This is unthinkable, especially after the Dobbs leak. The story provides very little information about the sourcing:
Supreme Court Justice Samuel Alito spoke to President-elect Donald Trump by phone Tuesday to recommend one of his former law clerks for a job in the new administration, ABC News has learned.
If the info did not come from the Court, the most likely source is from the other end of the call. No, I don’t think President Trump spoke to Faulders. More likely? Trump told someone that he spoke to Alito, and that person told someone else, and that someone else told the press. Or maybe something like that happened.
NEWS — Supreme Court Justice Alito spoke to Donald Trump Tuesday to recommend a former law clerk for a job in the new admin. Call occurred hours before Trump’s lawyers asked the justices to block Trump’s criminal hush money sentencing. Reporting w/ @jonkarl & @devindwyer
— Katherine Faulders (@KFaulders) January 8, 2025
Third, ABC News, and other outlets, are spinning this as President Trump talking to Alito shortly before Trump’s emergency petition was filed. And Alito’s comment says he wasn’t aware that the petition had been filed when he took the call. It was safe to assume that Trump would go to the Supreme Court as soon as Judge Merchan scheduled the sentencing for Friday. But I don’t think it would have mattered if Alito knew the petition was coming, or if Trump spoke to Alito after the petition was filed.
Fourth–and this may come as a shock–Judges are allowed to talk to parties in litigation about matters that do not concern litigation. It’s true! The problem with ex parte communications is that a judge may disclose some information to only one party. But no cannon of ethics prevents a judge from having unrelated communications with someone who has an interest in the litigation. Judges are not hermits. Trust me, this happens all the time. And I think it often occurs in the context of job recommendations. I can prove it.
In 2016, Vice News used FOIA to obtain email correspondences between the Department of Justice and Supreme Court Justices. A November 2013 email was sent from Solicitor General Donald Verrilli to Justice Sotomayor about a law clerk applicant.
Dear Justice Sotomayor: I understand that [redacted] has given you a call to discuss [redacted]. I assume he has provided you with the information you need but if I can be of any further assistance I’d be most happy to talk with you. Thanks for reaching out to us.
To be clear, the Justice reached out to the SG about a potential law clerk, and the SG returned the message and offered to speak to the Justice.
At this very time, several very important cases filed by the SG were pending before the Supreme Court, including Noel Canning, Hobby Lobby, and more. Just one week earlier, Verrilli had argued Bond v. United States. This correspondence is not unique. I’ve studied the papers of many Justices. And they are replete with letters and correspondences with lawyers and parties involved in litigation. (I have in my files correspondences between Justice Brennan and Lawrence Tribe, who was a frequent litigant before the high court.) Is there any suggestion that it was inappropriate for a sitting Justice to talk to the top lawyer for the government about a job reference? Of course not. Why?
Fifth, with Trump, everything is different. The subtext of the ABC News article is that Trump was making the phone call for some illicit purpose–that he was trying to gain some influence on Justice Alito, or affect how he would rule in New York case. Is there any evidence of this? Of course not. What we are left with is yet another instance where Trump is denied the sort of customary privileges that are afforded to all other politicians. Trump can’t even make a phone call to get a reference. As I recall, he was impeached based on a phone call. More of the same.
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