The Supreme Court admitted Thursday it has no idea who leaked a draft of the opinion overturning Roe v. Wade last year following an eight-month investigation that scoured the court’s computer system and interviewed nearly 100 employees.
Despite suffering what it called “one of the worst breaches of trust in its history,” the high court said the probe led by its marshal, Gail Curley, had been “unable to identify a person responsible by a preponderance of the evidence.”
In a 20-page report Curley found that it was “unlikely” the leak came from an outside actor — but noted that all 97 court employees interviewed had denied they were responsible.
“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,” wrote Curley, who added that the investigation is continuing and “other inquiries remain pending.”
Chief Justice John Roberts ordered the investigation last May into the leak of the draft opinion by Justice Samuel Alito that led to the court overturning its 1973 landmark Roe v. Wade ruling legalizing abortion nationwide.
The Supreme Court said it hasn’t been able to figure out who the leaker was. Getty Images“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said at the time.
The leak of the draft opinion sparked protests across the country by both pro-choice and anti-abortion activists.
Barricades were quickly erected in front of the Supreme Court building as demonstrators carried signs and chanted slogans outside.
In the weeks that followed, protesters would gather outside the homes of some of the justices who signed the decision, including Brett Kavanaugh and Amy Coney Barrett.
Police arrested a California man in June who said he had traveled to Kavanaugh’s home and intended to kill the justice and himself.
Curley’s investigation examined the court IT system’s operating logs to determine who had access to the draft opinion and discovered that “certain employees emailed the draft document to other employees, with approval.”
No evidence was found that the draft was emailed to anyone else, though Curley conceded that “technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely.”
In all, the report said 80 court personnel received or had access to electronic copies of the opinion, and hard copies were also available.
It said 34 personnel printed out copies of Alito’s draft opinion, with some printing out more than one.
Investigators also collected employees’ court-issued laptop computers and cell phones, but found no “relevant information from these devices.”
During the course of the probe, 126 formal interviews were conducted with the 97 employees.
“The investigators informed all witnesses that they had a duty to answer questions about their conduct as employees; that disciplinary action including dismissal could be undertaken if they refused to answer or failed to answer fully and truthfully,” the report said.
Following the interviews, employees were asked to sign an affidavit, under penalty of perjury and signed by a Notary Public, that they did not disclose the Dobbs decision to anyone outside the court.
Some of the employees admitted informing their spouses about the opinion or the vote count in violation of the court’s confidentiality rules.
“The interviews provided very few leads concerning who may have publicly disclosed the document. Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved,” Curley said in the report.
As part of the probe, investigators scrutinized relationships between court employees and reporters, as well as speculation that circulated on social media platforms but found “nothing to substantiate” the allegations.
“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,” the report said, adding that investigators cannot entirely eliminate the possibility that it was an inadvertent disclosure because it “was left in a public space either inside or outside the building.”
Roberts also asked former Homeland Security Secretary Michael Chertoff, a onetime New Jersey US Attorney and federal judge, to assess the investigation. Chertoff, in a statement issued through the court, described it as “thorough” and made four recommendations to prevent a similar leak in the future: limiting the distribution of “sensitive documents” via both hard copy and email, restricting access to such information on outside mobile devices, and more closely controlling who can use, edit and share such material.
