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Supreme Court unable to identify leaker in abortion opinion probe

The high court 'has already taken steps to increase security and tighten controls regarding the handling of sensitive documents'

A police officer is seen outside the Supreme Court in October.
A police officer is seen outside the Supreme Court in October. (Tom Williams/CQ Roll Call)

A Supreme Court investigation has been unable to identify who leaked a draft majority opinion last year in the case that would wipe out a constitutional right to abortion.

In a “Statement of the Court Concerning the Leak Investigation,” released Thursday, the court said Marshal of the Supreme Court Gail A. Curley and her team had analyzed evidence and interviewed nearly 100 employees. She had multiple follow-up interviews with certain employees.

“But the team has to date been unable to identify a person responsible by a preponderance of the evidence,” the court said.

The leak in May started Washington’s greatest whodunit in decades, as the high court and official Washington scrambled in the wake of a rare and extraordinary disclosure of insider information.

The Supreme Court, which had operated with an expectation that its deliberations are kept within the walls of the insular branch of government, announced the internal probe at the time.

The court also announced Thursday it had hired Michael Chertoff, a former secretary of Homeland Security, to review the court’s internal investigation. Chertoff, in a statement provided by the court, said he “cannot identify any additional useful investigative measures” not already undertaken or underway.

Chertoff recommended measures to prevent another leak and said the court “has already taken steps to increase security and tighten controls regarding the handling of sensitive documents.”

Curley, in a report released by the court, said the probe goes on in the form of some review and processing of electronic data. “To the extent that additional investigation yields new evidence or leads, the investigators will pursue them,” Curley said in the report.

Possible breaches

Investigators said they found no evidence of a breach of the Supreme Court’s computer system, the report said. But Curley also noted shortcomings in the court’s computer security like an inability to search user activity that prevented ruling out a breach.

The report also said that court personnel at times shared information with their spouses about the Dobbs opinion or handled the opinion itself improperly, against the court’s policy.

“Investigators also cannot eliminate the possibility that the draft opinion was inadvertently or negligently disclosed – for example, by being left in a public space either inside or outside the building,” the report said.

The report’s release follows months of speculation in Washington about the identity of the leaker, which included calls for the FBI to help find the culprit.

The report recommended the court control more tightly which employees have access to sensitive documents and track those who do. The court’s information security system is also outdated, the report said, which hampered investigators.

The report also noted that members of the House and Senate introduced bills last Congress that would criminalize disclosure of information like draft opinions and “consideration should be given to supporting such legislation.”

Neither bill advanced in the Democrat-controlled Congress. Rep. Mike Johnson, R-La., filed a measure to make disclosure of nonauthorized information from the Supreme Court a felony punishable by up to five years in prison.

Johnson called Thursday’s reports from the Supreme Court a “dangerous & inexcusable development that will jeopardize the future operations of our nation’s highest court.”

“Justice has clearly not been served here & the guilty party remains at large,” Johnson tweeted.

While the report noted that investigators spoke to dozens of employees, it did not say whether any justices were questioned as part of the probe.

Daniel Epps, a law professor at Washington University in St. Louis and a former Supreme Court clerk for retired Justice Anthony M. Kennedy, pointed out that the marshal’s report “does not even consider the possibility that the leak was by a justice.”

“If that was simply declared out of bounds at the outset, it’s hard to take this investigation seriously,” Epps tweeted.

Court’s view

The statement from the court Thursday also gives an unusual peek into the court’s view of its operations with an explanation why the court considered the leak of the draft, first published by Politico, “a grave assault on the judicial process.”

“To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open,” the court wrote.

“Along the way, though, it is essential that we deliberate with one another candidly and in confidence,” the court wrote. “That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment.

“It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations,” the court said.

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