Dobbs Leaker Still Unidentified

The Supreme Court's internal investigation was inconclusive.

WaPo (“Supreme Court says it can’t determine who leaked draft Dobbs opinion“):

The Supreme Court said Thursday that it cannot identify the person who in the spring leaked a draft of the opinion that overturned Roe v. Wade, an inconclusive likely finale to what the justices declared “one of the worst breaches of trust” in the court’s history.

After months of investigation and interviews, Supreme Court Marshal Gail Curley reported “it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico.”

“No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” her 20-page report said, adding that the leak probably came from within.

“While investigators and the Court’s IT experts cannot absolutely rule out a hack, the evidence to date reveals no suggestion of improper outside access,” the report said.

Curley said more than 80 people besides the nine justices had access to the draft opinion in Dobbs v. Jackson Women’s Health Organization, and a total of 97 individuals were interviewed as part of the leak investigation — some more than once. But she concluded that “based on a preponderance of the evidence standard,” a relatively low legal standard meaning there is proof that something is probably true, it was impossible to identify the leaker.

The report did not indicate clearly whether the justices themselves or others close to them were questioned, and a spokeswoman for the court did not respond to inquiries Thursday afternoon. “The investigation focused on Court personnel — temporary (law clerks) and permanent employees — who had or may have had access to the draft opinion during the period from the initial circulation until the publication,” the report said.

Although the report did not indicate that it was against the law to disclose the draft opinion, those interviewed were told they could be fired if they refused to answer or did not truthfully respond to questions, the report said. Each employee was asked to sign an affidavit “affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court” and to swear before a notary to the truth of that statement.

“Some individuals admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules,” the report said, but “the interviews provided very few leads concerning who may have publicly disclosed the document.”

NYT (“Supreme Court Says It Hasn’t Identified Person Who Leaked Draft Abortion Opinion“) adds:

Investigators also found no forensic evidence of who may have leaked the opinion in examining the court’s “computer devices, networks, printers and available call and text logs,” the report said.

The findings raised the possibility that no one will be held to account for one of the most stunning breaches of secrecy in the Supreme Court’s history. The leak left the court in a state of mutual suspicion about whether a clerk or even a justice betrayed its code of silence about rulings before they are announced.

[…]

The report said the marshal’s office would investigate any new information that arose, and it made several recommendations for improving security practices. But it conveyed the distinct impression that given the select measures in place and the number of people with access to the opinion, the mystery of who leaked the opinion might never be solved.

“If a court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” the report said.

It added: “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the court’s I.T. networks, increasing the risk of both deliberate and accidental disclosures of court-sensitive information.”

Investigators determined that in addition to the nine justices, 82 law clerks and permanent employees of the court had access to electronic or hard copies of the draft opinion, the report said.

But in describing the scrutiny of the court, the report left ambiguous whether that included the justices themselves. The report was also silent about whether the justices’ spouses had been questioned or whether their devices and communications logs had been examined.

This certainly greatly heightens the likelihood that one of the Justices or their spouses was the leaker. Certainly, Ginni Thomas is an obvious suspect.

FILED UNDER: Law and the Courts, Supreme Court, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Assad K says:

    *Gasp!*
    Quelle surprise!
    Etc etc
    The fact that this is no longer pronounced – by the usual suspects – as the worst, most terriblest thing that ever happened in the history of the Supreme Court just means its 99.9% likely it was from the conservative side of the bench.

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  2. daryl and his brother darryl says:

    The report did not indicate clearly whether the justices themselves or others close to them were questioned

    Seems like the investigation came up Alito short.
    Saying this investigation is complete is really a Ginni’d up claim.

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  3. Matt Bernius says:

    “The investigation focused on Court personnel — temporary (law clerks) and permanent employees — who had or may have had access to the draft opinion during the period from the initial circulation until the publication,”

    The report did not indicate clearly whether the justices themselves or others close to them were questioned.

    That kinda gives up the game, doesn’t it. Where you don’t look closely is sometimes just as telling as where you investigated. There are some real Casablanca gambling vibes here.

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  4. Chris says:

    Unless one of the left leaning Justices or a member of their staff is a supervillain, the likelihood that such a leaker was an abortion rights type seemingly diminishes everyday. Absent a lefty supervillain, it is hard to imagine right wing Justices hesitating to throw one their left leaning colleagues under the bus for a known transgression. As such, I lean into the thought the leak came from the anti-abortion side of the bench and the Republican appointees are just looking the other way.

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  5. MWLib says:

    those interviewed were told they could be fired if they refused to answer or did not truthfully respond to questions, the report said

    Since no one can fire a Supreme, they were not, evidently, among “those interviewed”, so Clarence and Ginni are in the clear and we’ll all forget about this in a few seconds. QED

    Oh, look over there, George Santos lied about something……………..

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  6. Kathy says:

    @daryl and his brother darryl:

    Seems like the investigation came up Alito short.

    You win the internet today.

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  7. Stormy Dragon says:

    Another thing to note is that the “based on a preponderance of the evidence standard” lead in implies the Marshall has an idea who the leaker was but just can’t prove it

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  8. gVOR08 says:

    An investigation by the Marshall of the Supreme Court who has what experience in such matters? And the description of the investigation sounds like, “Well we asked everyone, well, not everyone, and they all said they didn’t do it. What more could we do?” They may not have been able to get the FBI to investigate because it’s not at all clear there’s a crime. But there are law firms and security firms who could have been brought in. Seems like the investigation was something of a sham. Which points suspicion at the one who organized the investigation. Roberts did it, or is pretty sure who did.

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  9. Sleeping Dog says:

    Is anyone surprised that they couldn’t find the leaker? Let’s move along, nothing to see here.

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  10. OzarkHillbilly says:

    @gVOR08: Roberts did it, or is pretty sure who did.

    I don’t see Roberts leaking the decision, but I can easily see him tanking the investigation. He is very concerned with the general public’s perception of the Supreme Court as nothing more than a far right rubber stamp. Not enough to actually do something about it. Well, other than obfuscate.

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  11. Tony W says:

    The leak did two important things for the conservatives:

    1) It locked in a couple of votes that were on the fence. Don’t want to be accused of pandering to public opinion!

    2) It trickle-truthed the information to the general public. Rumors first, then the decision handed down. That helps mollify the outrage a bit and spread it out over time. We used this technique in corporate settings all the time with layoffs and other bad news.

    It’s obvious that Alito or one of his clerks released it, and it’s obvious why he did so.

    It’s also obvious that SCOTUS has to do at least a cursory “investigation” and report out that “nothing could be found”, otherwise they would be throwing a sitting member under the bus.

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  12. just nutha says:

    @Chris: I don’t see Republican appointees “looking the other way” as a viable option.

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  13. Beth says:

    @Chris:

    I think this categorically rules out any of the left judges or lefty clerks. I’m confident in this because if the Left of the court had leaked the Dobbs opinion and Roberts tried to sweep it under the rug, Altio or Thomas would have leaked that fact. Or straight up gone nuts about it publically. This is such a farce. Roberts is a racist coward.

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  14. gVOR08 says:

    There’s a good deal of comment that Alito or someone else leaked the document to lock the other conservative judges into it. The theory being that while they might otherwise have joined Roberts just short of overturning Roe de jure, only de facto, but once Alito’s opinion was outed they’d look bad if they moved to the center from Alito’s opinion. I believe it. It’s the level of judicial integrity I’d expect from these Federalist Stepford Justices. “Ooh, I think the law and common sense say I should display a little moderation, but I’d look bad, so screw that.”

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  15. charon says:

    It’s obvious that Alito or one of his clerks released it, and it’s obvious why he did so.

    I cast the net slightly wider – Alito, Ginni, or Clarence. But yeah, Sam is the most probable.

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  16. gVOR08 says:

    Seems to me this so called investigation is consistent with how the conservatives see their role. They’ve been saying for months , “You must respect us because we say so.” and now Roberts is saying, “Well, we thoroughly investigated. That’s the end of that because I say so.”

    I see there’s a late update. The Marshal is quoted,

    “During the course of the investigation, I spoke with each of the Justices, several on multiple occasions,” said Marshal Gail A. Curley. “The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.”

    Seems to me less than convincing. “Spoke too”? “Good morning Justice Alito, sir. How are you doing this lovely day?” “Fine, thank you. How’s that investigation going?” “Oh, good.” Would count as spoke to and iterative. My feeling is that had she been able to say with a straight face, “Each of the Justices and the Chief were subjected to an investigative interview.” she would have. WIKI says the Marshal, “Reports to: Supreme Court of the United States”. I expect that means Roberts, presumably through someone like an administrative chief of staff, but the other Justices could make trouble for her.

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  17. gVOR08 says:

    @charon:

    I cast the net slightly wider – Alito, Ginni, or Clarence. But yeah, Sam is the most probable.

    I agree, likely Soapy Sam, but I’d add the possibility Kavanaugh had a copy in a briefcase he forgot in a bar.

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  18. Raoul says:

    Let the facts speak for themselves. The Robert’s decision on the Affordable Healthcare Act was leaked on Ginny’s listserv. Alito’s decision on birth control was leaked after he had dinner with the leaker!

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  19. Barry says:

    IMHO, this investigation was conclusive; it narrowed the leaker down to the SCOTUS 6 + Ginny.

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  20. al Ameda says:

    Sometimes the most simple explanation is the most likely one:
    The theory that the Dobbs brief was leaked in order to keep Roberts from getting another justice to join him in a compromise opinion makes the most sense.

    To me Alito is the justice most likely to have made this happen. There is known precedent here: He leaked the Hobby Lobby decision, and he seems very animated by religion-related cases and decisions, and Dobbs was certainly all of that.

    If it wasn’t Alito, I believe that Ginni Thomas very likely had access to the draft, and she is definitely a right wing movement radical, and she too would not want to see any of the new conservative justices break off to a Roberts compromise position. I can easily imagine Ginni Thomas selling out the Court for the opportunity to overturn Roe.

    Finally, I do NOT belive that any Court staff (e.g. law clerks) did this – there is too much career capital at stake for any of them to flush it down the Alito Court toilet.

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