“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. Five conservative justices used the case to overturn Roe, while Chief Justice John G. Roberts Jr. said he would have upheld the restrictive Mississippi abortion law at issue. The court’s three liberals combined on an angry dissent.
The leak was an extraordinary breach of the decorum and practice at a place that prides itself on keeping internal deliberations of the justices secret. It has been condemned as a harmful disruption by those members who have discussed it publicly.
In a preamble to the report, an unsigned note from the court called the leak “one of the worst breaches of trust in its history.”
“The leak was no mere misguided attempt at protest,” the note said. “It was a grave assault on the judicial process.” The justices added: “It is essential that we deliberate with one another candidly and in confidence . . . It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.”
The report suggests that the court’s technology was an obstacle to the effort to identify the leaker because not all of the printers, for instance, kept running, up-to-date logs of activity. Investigators collected court-issued laptops and cell phones from all employees who had access to the draft opinion, but did not find relevant information on those devices.
As part of the investigation, Curley and her team also reviewed any connections between court employees and reporters, including speculation on social media. Those inquiries “found nothing to substantiate any of the social media allegations regarding the disclosure.”
The report concludes that the person behind the leak was able to “act with impunity” because of inadequate security surrounding hard copies of documents and the lack of ability to track printing and copying at the court. Curley recommends implementing new policies and training to better manage sensitive documents and updating the court’s technology for tracking access and case-related documents.
Alito said this fall that the leak was a “grave betrayal of trust by somebody, and it was a shock” that led to a “changed” atmosphere at the court and made his colleagues in the majority “targets for assassination.” The threat to the justices, he added, was not theoretical because it “gave people a rational reason to think they could prevent that from happening by killing one of us.”
Roberts took the extraordinary step of confirming the authenticity of the draft opinion the day after it was published, and announcing an internal investigation into the leak. “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said. “The work of the Court will not be affected in any way.”
He has been silent about the leak since then, even as other justices mentioned the investigation was ongoing and talked about what they said were damaging implications of the leak on the court’s deliberations and trust among individual justices.
Justice Neil M. Gorsuch said in September it was “terribly important” to identify the source of the leak.
“Improper efforts to influence judicial decision-making, from whatever side, from whomever, are a threat to the judicial decision-making process and inhibit our capacity to communicate with one another,” Gorsuch said at the U.S. Court of Appeals for the 10th Circuit’s semiannual Bench & Bar Conference in Colorado.
But little is known about the investigation, except for a few reports that have surfaced about disagreements among justices and their clerks over attempts to examine cellphone records.
Conservatives have been increasingly vocal about finding the source of the leak. Meanwhile, abortion-rights protesters have regularly gather outside the homes of Roberts and other justices since May.
A California man is facing attempted assassination charges after being arrested outside the suburban Maryland home of Justice Brett M. Kavanaugh with weapons and a plan to break into the justice’s house.
The leak turned the Supreme Court into a place “where you look over your shoulder,” and may have irreparably sundered trust at the institution, Justice Clarence Thomas said at a conference weeks after the leak.
“What happened at the court was tremendously bad,” Thomas said. “I wonder how long we’re going to have these institutions at the rate we’re undermining them. And then I wonder, when they’re gone or destabilized, what we’re going to have as a country.”
Liberal Justice Elena Kagan likewise condemned the leak. “The court depends upon confidentiality in its deliberations in order to reach decisions,” she said in an appearance last fall, “and you can’t do that if you know that you might wake up tomorrow morning and there is a decision and it is on the front page of newspapers.”
This is a developing story.
