Supreme Court says it has not found who leaked the advice to destroy Roe

WASHINGTON — The Supreme Court announced Thursday that an internal investigation had been unable to determine who leaked a draft of the opinion that overturned Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

In a 20-page report, the court marshal Gail A. Curley, who oversaw the investigation, said investigators had conducted 126 formal interviews with 97 employees, all of whom had denied being the source of the leak. But several employees admitted telling their spouses or partners about the draft opinion and vote counting in violation of court confidentiality rules, the report said.

However, the investigation did not reveal that any of those discussions resulted in a copy of the draft opinion being made public. Investigators also found no forensic evidence of who might have leaked the opinion when examining the court’s “computer equipment, networks, printers, and available call and text logs,” the report said.

The findings raised the possibility that no one will be held accountable for any of the most astonishing breaches of secrecy in the history of the Supreme Court. The leak sent the court into a state of mutual distrust over whether a clerk or even a judge has betrayed his code of silence on rulings before they are announced.

The inconclusive report comes as polls have shown weakened confidence in the court is motivated by law rather than politics, with a conservative supermajority that has moved steadily to the right in most consistent cases.

In a May statement hours after Politico released the draft opinion in the Dobbs v. Jackson Women’s Health Organization case, Chief Justice John G. Roberts Jr. affirmed. its authenticity, but said it did not represent the final version. He called the leak “a singular and egregious breach” and ordered a thorough investigation. When the court issued its decision overturning Roe v. Wade in June, the opinion was essentially unchanged.

The report said the marshal’s office would investigate any new information that emerged, and it made several recommendations to improve security practices. But it gave the clear impression that given the measures selected and the number of people with access to the opinion, the mystery of who leaked the opinion will never be solved.

“If a court official made the draft opinion public, that individual was in brutal violation of a system fundamentally built on trust with limited safeguards to regulate and limit access to highly sensitive information,” the report said.

It added: “The pandemic and the 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 court’s building and IT networks. the court, reducing the risk of both intentional and inadvertent disclosure of court-sensitive information.”

Investigators determined that in addition to the nine judges, 82 court clerks and permanent staff had access to electronic or paper copies of the draft opinion, the report said.

But in describing the court’s scrutiny, the report left it unclear whether that included the judges themselves. The report was also silent on whether the judges’ spouses had been questioned or whether their devices and communication logs had been examined.

Specifically, the report stated that all witnesses were initially told they had a duty to answer questions about their behavior as employees and could be fired if they refused. But Supreme Court justices cannot simply be fired from their jobs.

Chief Justice Roberts also asked Michael Chertoff, a former Secretary of the Department of Homeland Security, to independently review the investigation. In a one-page statement accompanying the report, Mr. Chertoff that Mrs. Curley had conducted a thorough investigation and that he “could not identify any additional useful investigative measures” that they should have taken.

Mr Chertoff did not respond to an email asking whether Ms Curley’s investigators had questioned the judges and their spouses.

When Chief Justice Roberts Mrs. Curley to oversee the investigation, some questioned whether she had the required expertise and resources to do so. Ms. Curley, a former national security attorney for the military, heads an office of approximately 260 employees who primarily provide physical security for the judges and courthouse.

At the end of those interviews, the report said, employees also signed affidavits “under penalty of perjury” stating that they had not disclosed the draft opinion or information about it to anyone not employed by the court and that they investigators had told them everything they knew about the breach.

Investigators had looked for signs of discontent or stress, including anger at the court’s decision, Ms Curley said. In a clear nod to speculation that a Conservative might have leaked the draft to bring in the five judges who had already tentatively voted in the majority, she also wrote that they had “carefully evaluated whether the staff might have reason to overrule the draft decision of to be disclosed to the court. for strategic reasons.”

The leak soured relations between the judges. Judge Clarence Thomas likened it to infidelity. Justice Samuel A. Alito Jr., the opinion’s author, said the disclosure endangered life of the judges in the majority.

The report says that investigators “particularly scrutinized all contacts with anyone associated with Politico” and assessed public speculation, including on social media, about possible suspects.

“Different clerks were named to different posts,” the report said. “During their investigation, the investigators found nothing to substantiate the social media allegations related to the disclosure.”

During the investigation, investigators collected all court-issued laptops and cell phones from people who had access to the draft opinion but found no relevant information.

Call and text logs and billing data from personal cell phones also indicated nothing relevant, the report said. While the report said that “all employees who were requested voluntarily provided such logs,” it did not specify how extensive those requests were.

The report cited significant technical limitations in the study. For example, while researchers could view logs of when the draft advice was printed to network printers, 46 printers in the building were connected only to local computers, meaning they generated no network logs. In their own local memory, those printers only kept a log of the previous 60 documents that had been printed, the report said.

But despite those limitations, the report also said investigators did not believe outside hackers were responsible for extracting a copy of the Dobbs op-ed from the Supreme Court’s network.

“It is unlikely that the disclosure was caused by a hack of the court’s IT systems,” the report said. “The court’s IT department has found no evidence of a hack, but continues to monitor and check the system for signs of compromise or breach of the court’s IT infrastructure.”