The leak of Justice Samuel A. Alito Jr.’s draft opinion was an extraordinary breach of decorum and practice at the court.
A report from Supreme Court Marshal Gail Curley said “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,” the report said.
Curley said more than 80 people had access to the draft opinion and 97 were interviewed, some more than once. But she concluded that “based on a preponderance of the evidence standard,” it was impossible to identify the leaker.
The report did not indicate clearly whether the justices themselves were questioned. “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,” it said.
Those interviewed were told they could be fired if they refused to answer or did not truthfully respond to questions, the report said. Each employee was asked to sign an affidavit “affirming that he or she did not disclose the Dobbs draft opinion to any person not employed by the Supreme Court” and to swear before a notary to the truth of the statement.
A few of those interviewed admitted to telling their spouses about the draft opinion or vote count in violation of the court’s confidentiality rules, the report said, but “the interviews provided very few leads concerning who may have publicly disclosed the document.”
In making public the report on Thursday, the court said it had consulted with Michael Chertoff, a former Homeland Security secretary and federal judge, to assess Curley’s investigation. Chertoff characterized the review as “thorough” and said in a statement that he “cannot identify any additional useful investigative measures” not already undertaken or underway.
The legal and political worlds have been anxiously awaiting the results of the internal investigation since May, after Politico published a draft of Justice Samuel A. Alito’s draft opinion. The draft was essentially the same as the decision the court issued weeks later.
