The report on the Supreme Court‘s leak investigation left more questions unanswered, though it did provide a detailed look into the security apparatus surrounding the most secretive institution of the judicial branch.
In a 20-page report, Supreme Court Marshal Col. Gail Curley, who oversaw the inquiry, said investigators conducted 126 interviews with 97 employees, all of whom denied being the source of the leaked draft opinion signaling the overturning of Roe v. Wade last summer.
Conservative judicial activist Carrie Severino, head of the Judicial Crisis Network, slammed the lack of success behind the nearly nine-month investigation, tweeting Thursday that “the report reflects the Chief Justice’s utter failure in the administrative aspect in his role.”
SUPREME COURT’S REPORT ON DOBBS INVESTIGATIVE FAILS TO FIND DRAFT LEAKER
The report reflects the Chief Justice’s utter failure in the administrative aspect in his role. The inadequate security measures detailed created the environment that allowed the leaker to believe he or she could intimidate the Court into changing course in the Dobbs case. /1 https://t.co/jajzEtUz9C
— Carrie Severino (@JCNSeverino) January 19, 2023
“The inadequate security measures detailed created the environment that allowed the leaker to believe he or she could intimidate the Court into changing course in the Dobbs case,” Severino said, adding that she hoped a leak of such magnitude never happens again but that a “lack of consequences for the leaker will encourage history to repeat itself.”
Here are the outstanding questions following the release of the draft leak report:
Who is the leaker?
Out of the 97 court employees interviewed for the investigation, officials were unable to conclude whether any of them were responsible for the leak. Nobody admitted guilt during the course of 126 interviews.
The findings of the report focused extensively on investigators’ attempts to determine how the draft opinion, which circulated the high court as early as Feb. 10, 2022, was published by Politico on May 2.
“At this time, based on a preponderance of the evidence standard, 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,” the report noted.
Michael Chertoff, who served as homeland security secretary in the George W. Bush administration, was tapped by the court to help with the investigation. He said he “cannot identify any additional useful investigative measure.”
In the months after the May 2 leak, several online social media users gained thousands of likes and reactions on posts speculating about the identity of the leaker, with the most prominent posts being purported rumors about the justices’ law clerks.
The report made clear that after probing such allegations, officials “found nothing” to substantiate the claims.
But investigators also made a glaring revelation that “too many personnel have access to certain Court-sensitive documents.”
Could a justice have been the leaker?
Among other conspiracies alleging individual high court clerks as purported leakers, another school of thought is that it originated from one of the nine justices, a point that was not addressed in the leak report.
One belief is that one of the six conservative high court justices leaked the opinion as a means to lock in the majority votes for overturning Roe that were depicted in the May 2 draft, which was later confirmed to be the only draft to exist of the decision. Another belief is that one of the three liberal justices leaked the opinion in order to create public pressure against the justices wanting to overturn the 49-year precedent.
While investigators conducted 126 total interviews among 97 employees, they determined that only the nine justices, along with 82 employees, had access to electronic or hard copies of the draft opinion.
It’s especially worth noting that the report made no indication of whether the justices themselves were interviewed or whether they disclosed or discussed the draft with their spouses.
Can we rule out a hack?
No, investigators have no way of ruling out whether the leak could have stemmed from an outside cyberattack.
“The investigators did not find any logs or IT artifacts indicating that the draft opinion was downloaded to removable media, but it is impossible to rule out,” the report stated.
Will the investigation continue?
In short, the investigation will continue, but the extensive report nine months after the leak marks the most detailed and factual analysis of the investigation since the high court breach was made public on May 2.
Vermont Law School professor Jared Carter told the Washington Examiner, “It is incredibly troubling for the court that they were unable to resolve this,” adding, “If the internal investigation continues to turn up no answers, that really hits the court’s credibility and public standing.”
Can Supreme Court justices build trust with a leaker on the loose?
The report makes no secret that the leak last year saw the high court sustain “one of the worst breaches of trust in its history.”
“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 notes.
University of Richmond law professor Carl Tobias told the Washington Examiner that “not identifying a leaker will complicate efforts to rebuild trust in the Court and on the Court.”
“Justices of all stripes politically have expressed concerns publicly about rebuilding trust, and that will be difficult to do in the future,” Tobias added, noting “some observers” have suggested the leak explains in part why the justices have gone a historic length without publishing an opinion.
Much of the security concerns were linked to the unprecedented 2020 closure of the high court due to the COVID-19 pandemic.
“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 IT networks, increasing the risk of both deliberate and accidental disclosures of Court- sensitive information,” the report stated.
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Still, Tobias said the report may “overstate the blame to be placed on the pandemic.”
Read the full 20-page report on the leak below:
