The story of a Washington dirty trick that worked — and of a culprit who got away with it.
The Supreme Court has announced, in a 20-page public report, that it has essentially wrapped up the Dobbs-leak investigation and . . . the leaker has gotten away with it.
This is enraging, and is yet another instance of elite impunity in the nation’s capital, where abuses of power — especially those that target conservatives — are rarely punished. The leak had real, foreseeable consequences: It triggered protests at the conservative justices’ homes and even an assassination attempt against Justice Brett Kavanaugh. It gave Michigan Democrats a head start in organizing and getting a proposition on abortion on the November ballot. The leak was roundly condemned by conservatives outside the Court and cheered by many progressives, a number of whom then publicly argued against clerks’ cooperating with the leak investigation. We still do not know who the leaker was, but cui bono? Certainly, everyone on all sides of the political commentariat acted as if they believed that this came from an opponent of the final outcome.
I have written previously at length here, here, here, and here about who may have been the likely leaker and why, and here and here about the glacial progress of the investigation. The Marshal’s public report concludes that “it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court,” and that all 97 people interviewed have denied being the leaker, so we can reasonably be certain that the leaker is or was a Court employee (including law clerks) who has committed at least one federal crime. After reciting the various legal duties and agreements binding the justices, the clerks, and other Court employees, the report warns that “all personnel who had access to the draft opinion signed sworn affidavits [under penalty of perjury] affirming they did not disclose the draft opinion nor know anything about who did. If the investigators determine any of these personnel lied, they could be subject to prosecution under 18 U.S.C. § 1001.”
Congress should act to extend the statute of limitations — now, before it expires — to ensure that the leaker can be prosecuted if discovered, no matter how long this takes. There is already a statute that tolls the limitations period for fugitives; it could be amended to make explicit that providing a false affidavit to investigators to successfully thwart a probe this extensive can be prosecuted long after the fact. If nothing else, that will leave the sword of Damocles hanging over the leaker, which is better than doing nothing more. After all, it took decades to identify “Deep Throat,” the Watergate leaker.
Notably, the report concludes that investigators were unable to prove the leaker’s identity by a preponderance-of-evidence standard, the standard of proof used in civil and administrative cases. It is thus entirely possible that the investigators have a suspect, or a small number of suspects, but have not been able to pin them down. The Marshal’s report states that some inquiries remain outstanding, so it’s possible that there could yet be a break in the case. The report is somewhat opaque:
A few circumstances justified closer inspection, which was conducted but did not result in any solid leads as to the identity of who may have disclosed the document. Consistent with standard policy for most law enforcement agencies, this report does not identify any individuals who received additional scrutiny because (a) certain aspects of the investigation may yield additional pertinent information and (b) in any event, there is not adequate evidence, even applying a preponderance of the evidence standard, to conclude that any particular individual was responsible for the disclosure.
The report confirms a few facts. The draft opinion was, as the draft stamp indicated, internally circulated on February 10, nearly three months ahead of the leak. As far as the digital trail is concerned, “certain employees emailed the draft document to other employees, with approval. There was no evidence discovered that anyone emailed the draft opinion to anyone else, although technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely.”
The report states that there were 82 people involved, plus the nine justices who had access, which makes 91; it is unclear who the other six people interviewed were. One hundred and twenty-six formal interviews were conducted, suggesting that as many as 29 people were interviewed more than once. Thirty-four people acknowledged having printed out copies of the draft, in some cases multiple copies. However, given the number of printers not networked to the Court’s system, print logs proved to be a dead end. Further:
A few of those interviewed admitted to telling their spouses about the draft opinion or vote count, . . . in violation of the Court’s confidentiality rules. Several personnel told investigators they had shared confidential details about their work more generally with their spouses. . . . Some personnel handled the Dobbs draft in ways that deviated from their standard process for handling draft opinions.
This sort of thing is exactly why I had warned, as far back as December 2021, that a decision overturning Roe v. Wade might leak in advance.
The Marshal notes that investigators considered motives and public speculation:
Investigators carefully evaluated the statements and conduct of personnel who displayed attributes associated with insider-threat behavior – violation of confidentiality rules, disgruntled attitude, claimed stressed, anger at the Court’s decision, etc. . . . Investigators also carefully evaluated whether personnel may have had reason to disclose the Court’s draft decision for strategic reasons. Investigators looked closely into any connections between employees and reporters. They especially scrutinized any contacts with anyone associated with Politico. Investigators also assessed the wide array of public speculation, mostly on social media, about any individual who may have disclosed the document. Several law clerks were named in various posts. In their inquiries, the investigators found nothing to substantiate any of the social media allegations regarding the disclosure.
Interviewees were given limited immunity from prosecution in order to identify the culprit: They were told that “the answers provided and any resulting information or evidence could be used in the course of civil or administrative proceedings; and that such information or evidence could not be used against them in any criminal proceedings unless they knowingly and willfully provided false statements.” Everyone cooperated, and “all employees who were requested to do so voluntarily provided call and text detail records and billing statements for their personal devices for a defined period to the best of their abilities.”
The Court is likely to revamp its security procedures, and the report suggests some improvements. But the best security procedure would have been the public punishment of the leaker. Until that happens, consider this a story of a Washington dirty trick that worked — and of a culprit who got away with it.