Dobbs leaker at large

The Supreme Court announced this afternoon that the leaker of the Dobbs draft opinion remains at large. That is unfortunate for many reasons, including the damage done to the Court as an institution and the physical danger to which the leak subjected the justices supporting the draft opinion. It’s also unfortunate that the Biden administration appeared not to give a rip.

I gleaned from one of the stories on the Court’s announcement that the Court had issued a statement on its investigation, but it is more than that. The statement is accompanied by an evaluation of the Court’s investigation by Michael Chertoff from his perch at the Chertoff Group (my youngest daughter worked for the Chertoff Group for two years) and the Marshal’s 20-page report of findings and recommendation. All three documents are accessible here on the Supreme Court site.

The Marshal’s report includes this summary statement at pages 1-2:

The investigation has determined that it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court. After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence indicating who disclosed the draft opinion. They have conducted 126 formal interviews of 97 employees, all of whom denied disclosing the opinion. 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. Investigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending. To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.

The report describes the investigation of “employees” of the Court, but the term is not specifically defined. Justices may or may not be included — for example, at page 11 the report states “in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion.”

The investigation included a total of “126 formal interviews of 97 employees” (pages 1-2). The report also states at page 3: “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 by Politico.” At page 8 the report quotes from the Code of Conduct for U.S. Judges. The materials are otherwise silent on the possibility that the leaker may have been a justice.

I may be missing something or be obtuse on this point, but I don’t think the report makes it clear whether the justices themselves were treated like all other employees with access to the Dobbs draft. I think it would have been helpful if the issue were expressly addressed. (Let me be clear that I doubt the leaker was one of the justices.)

The report includes this statement summarizing the upshot of the investigation in the report’s general findings and recommendations at pages 17-18:

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. 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. 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. 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.

Assuming, however, that the opinion was intentionally provided to Politico by a Court employee, that individual was evidently able to act without being detected by any of the Court’s IT systems. If it was a Court employee, or someone who had access to an employee’s home, that person was able to act with impunity because of inadequate security with respect to the movement of hard copy documents from the Court to home, the absence of mechanisms to track print jobs on Court printers and copiers, and other gaps in security or policies.

As always, I encourage interested readers to review the posted materials with your own eyes.
I emphasize that in this case in part because I may have overlooked something bearing on the points I make above. Reading the report, I am impressed (again) by the wanton betrayal of trust implicit in the leak. The report includes more information regarding the investigation, but that is “the bottom line,” as they say wherever clichés run free.

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