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.
