An investigation into the leak of a bombshell Supreme Court ruling overturning the federal constitutional right to abortion — weeks before it was officially released — failed to identify the culprit, the court said Thursday.
The inability to find the source of the leak was yet another embarrassing development for the Supreme Court, which on Thursday called the premature disclosure of the opinion “one of the worst betrayals of trust in its history” and “a grave assault on the judicial process.”
Investigators had interviewed nearly 100 Supreme Court employees in the probe, 82 of whom had access to electronic or hard copies of the draft majority opinion by conservative Justice Samuel Alito.
Politico on May 2 reported that it had obtained a leaked copy of that opinion indicating that the Supreme Court was poised to overturn its five-decade-old ruling in the case known as Roe v. Wade, which found there was a constitutional right to abortion. That draft had first been circulated among the court’s justices and clerks on Feb. 10.
In June, just as the leak report suggested, the Supreme Court in a majority opinion penned by Alito said there was no federal right to abortion. The opinion came in a case known as Dobbs v. Jackson Women’s Health Organization, which challenged Mississippi’s restrictive abortion law.
On the heels of the leak, Chief Justice John Roberts directed Gail Curley, the marshal of the Supreme Court, to investigate who released the draft opinion to Politico.
“In following up on all available leads … the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees,” the Supreme Court said Thursday in a statement, which was accompanied by the release of Curley’s report on the probe.
“But the team has to date been unable to identify a person responsible by a preponderance of the evidence,” the court said.
Curley’s report suggests that the leaker almost certainly was a member of the court staff, noting that “the investigation has determined that it is highly unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the court.”
In her 20-page report, Curley said that investigators had examined the court’s computer devices, networks, printers, “and available call and text logs.”
But “investigators have found no forensic evidence indicating who disclosed the draft opinion,” Curley wrote.
She also noted that her team of attorneys and federal investigators “conducted 126 formal interviews of 97 employees, all of whom denied disclosing the opinion.”
“Despite these efforts, investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Org. or how the draft opinion was provided to Politico,” Curley wrote.
The report says that after initial interviews were conducted with court staff, each employee was asked to sign an affidavit, under penalty of perjury, saying that they did not disclose the Dobbs draft opinion to anyone not employed by the Supreme Court. A few employees admitted that they had told their spouses about the draft or the vote count of justices in the case, the report noted.
The report also says that among other steps taken in the probe, “The investigative team received outside assistance with a fingerprint analysis of an item relevant to the investigation.”
“That analysis found viable fingerprints but no matches to any fingerprints of interest,” the report said, without disclosing the nature of the item examined.
The Supreme Court, in its statement, said that after the investigation was completed, the court invited Michael Chertoff, a former federal judge and prosecutor, and one-time secretary of Homeland Security, to assess Curley’s probe.
Chertoff “has advised that the Marshal ‘undertook a thorough investigation’ and, ‘[a]t this time, I cannot identify any additional useful investigative measures’ not already undertaken or underway,” the court said.
The statement said that investigators will continue to review some electronic data that has been collected for the probe, “and a few other inquiries remain pending.”
Curley, in her report, said, “To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.”
Curley also wrote that the Covid-19 pandemic and the resulting expansion of court staff’s 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 IT networks.”
That, in turn, increased “the risk of both deliberate and accidental disclosures of Court sensitive information,” the report said.
Curley wrote that “too many” members of court staff have access to sensitive documents, and that there is “no universal written policy or guidance” on safeguarding draft opinions.
She also wrote that, The Court’s current method of destroying Court-sensitive documents has vulnerabilities that should be addressed,” and that, “The Court’s information security policies are outdated and need to be clarified and updated.”
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