The investigation into who might have leaked a draft Supreme Court opinion in the landmark Dobbs v. Jackson Women’s Health Organization case last May appears not to have included Justices themselves in questioning.
The decision, which ultimately was little changed from the draft version, overturned the Court’s controversial precedent in Roe v. Wade (1973) on a “constitutional right” to abortion, and returned the issue to the states.
The leak to Politico, an unprecedented breach of protocol, caused an uproar and led to a wave of protest and violence, with attacks on pro-life institutions and even an attempted assassination of Justice Brett Kavanaugh.
As Breitbart News reported Thursday, the investigation concluded without identifying the source of the leak:
The investigation by the marshal of the Supreme Court included a forensic investigation of laptops and phones but found “no relevant information from these devices.” The marshal’s office determined that 82 employees had access to the opinion and interviewed 97 employees, all of whom denied leaking the opinion.
In addition, the marshal investigated connections between employees and contacts in the media, with a particular focus on Politico. They also followed up on social media claims of who might have leaked the decision, but “investigators found nothing to substantiate any of the social media allegations.”
“Some individuals admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules,” the investigation reads.
Although the report, released in a statement by the Court, mentions the interviews of almost 100 employees, it does not discuss any interviews of the justices themselves, who appear to have been held beyond any suspicion:
It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.
For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation. The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff. After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the “82 employees [who] had access to electronic or hard copies of the draft opinion.” Marshal’s Report of Findings & Recommendations 11 (Jan. 19, 2023). In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person responsible by a preponderance of the evidence. Id., at 17. A public version of the Marshal’s report is attached.
Recently, this Court consulted Michael Chertoff. Mr. Chertoff is a former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey. We invited Mr. Chertoff to assess the Marshal’s investigation. He has advised that the Marshal “undertook a thorough investigation” and, “[a]t this time, I cannot identify any additional useful investigative measures” not already undertaken or underway. Statement from Michael Chertoff 1 (2023). A copy of Mr. Chertoff’s statement is attached.
Chertoff’s statement notes that the Marshall conducted interviews with “a broad swatch of employees” and that they were “appropriately and professionally conducted.” He does not mention any interviews with the justices.
Politico — which published the leaked opinion — noted cheekily on Thursday that “the report is silent on whether the nine justices on the court last term were interviewed as part of the investigation.”
Update: The Marshal of the Court clarified Friday that all nine justices had, in fact, been interviewed, though none were asked to sign a sworn statement under penalty of perjury that they had not leaked the draft decision.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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