The Supreme Court has come up empty in its search for who leaked a draft opinion on last year’s highly charged abortion rights case to the media weeks before it was issued.
An eight-month investigation produced leads but no clear culprit, the court’s marshal said. The probe couldn’t rule out an inadvertent leak or a hack, though the report said there was no evidence of such a breach.
“The team has to date been unable to identify a person responsible by a preponderance of the evidence,” wrote Marshal Gail Curley, whom Chief Justice John G. Roberts Jr. ordered to lead the probe.
Her report concluded that there were too many lapses and too few controls on possession of opinions that raised the risk of a leak — intentional or otherwise.
The draft opinion in Dobbs v. Jackson Women’s Health Organization, written by Justice Samuel A. Alito Jr., was reported by Politico on May 2. The report made clear that the court was preparing to overturn the Roe v. Wade decision that, for nearly five decades, had fostered a national right to abortion.
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The leaked version tracked closely with the final majority opinion that the court released on June 24.
Justice Alito said this fall that the leak changed the atmosphere at the court and made members “targets for assassination.”
Court watchers said the early leak was unprecedented and damaged perceptions of the court.
The investigation was hobbled by limitations of the court’s systems, which didn’t allow for complete tracking of who shared or printed copies of the draft and by work-from-home policies.
The marshal said some employees did admit to telling their spouses about the draft and the way the court was leaning. Some of those employees said they thought that was allowed under the court’s rules.
Other employees violated document handling rules, the marshal said.
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Still, none of them was linked to the leak.
“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 concluded.
A total of 82 employees had access to the draft in either electronic or printed form.
Investigators also pored over computers and call and text logs, with a particular eye for contacts with anyone associated with Politico.
The marshal said investigators lifted viable fingerprints from “an item relevant to the investigation” but were unable to match them “to any fingerprints of interest.”
Investigators also pursued suggestions on social media speculating about certain law clerks who might have leaked the opinion. The probe found no evidence to substantiate any of those speculations.
Michael Chertoff, who has served as a federal judge, homeland security secretary and senior official in the Justice Department, reviewed the marshal’s investigation at the request of the court. He said the interviews were conducted right, all leads were followed and investigators sought outside assistance when they needed it.
He said the investigation is continuing, but in the meantime, he and the marshal recommended new restrictions on access to sensitive documents. They also called for better tools to track who read, edited, shared or printed documents.
Some recommendations were withheld from the public version of the report for security reasons, the marshal said.
The report noted that the court’s investigative team is continuing to review electronic data, but it suggested that the high court decrease the number of people who can access sensitive information and better equip its technology to track the use of computers and printers.
Court watchers appeared somewhat split in their reaction to the court’s update on the probe.
Mike Davis, a former clerk for Justice Neil M. Gorsuch, praised the high court for being transparent and thorough in releasing its findings.
“It’s a very thorough report, and they are being transparent here,” he said. “It goes into a lot of detail about what they did and what went wrong at the court.”
Mr. Davis did note, though, that the probe did not appear to subpoena phone records for clerks or conduct polygraph tests.
Jonathan Turley, a law professor at George Washington University, said some experts are concerned that the high court never brought in the FBI to conduct the investigation.
“They are a few blocks away from the leading forensic investigatory body in the world. It was surprising the FBI was not brought in to take the lead,” he told Fox News.
The leak marked the first time a full draft opinion had been made public early.
Pro-choice activists were outraged by the leak and began protesting outside the homes of conservative justices, having shared their addresses online.
Protests have been continuing ever since.
One activist, Nicholas Roske, even traveled from California to Justice Brett M. Kavanaugh’s home in Chevy Chase, Maryland, with plans to assassinate him, according to authorities. Mr. Roske is in federal custody awaiting trial.
The leak, meanwhile, did not count as disinformation. Justice Samuel A. Alito Jr.’s official opinion closely mirrored the leaked draft opinion.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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